author: ANDERSON, J.

text:
    In re the Estate of Paul R. Sharpley Sr.: Paul R. Sharpley Jr., Appellant, v. Paul R. Sharpley III, Respondent.
    Court of Appeals

      No. 01-2167.

      Submitted on briefs May 28, 2002.

    Decided July 3, 2002.

    2002 WI App 201
    (Also reported in 653 N.W.2d 124.)

      On behalf of the appellant, the cause was submitted on the briefs oí Leonard G. Adent oíAdent Law Offices, Waukesha.
    On behalf of the respondent, the cause was submitted on the brief of Daniel W. Stevens of Stevens & Kroening LLC, Menomonee Falls.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.

       Petition to review denied 9-26-02.

   ANDERSON, J.

¶ 1. Paul R. Sharpley Jr. appeals from a judgment admitting his father Paul R. Sharpley Sr.'s will to probate and holding that there was no undue influence in the making of Paul Sr.'s will that disinherited Paul Jr. and gave the entire estate to Paul Sr.'s grandson, Paul R. Sharpley III. Paul Jr. contends that the trial court erred when on the morning of trial, it granted Paul Ill's motion to strike the jury on the grounds that a party is not entitled to a jury trial in a will contest. Paul Jr. also complains that after the trial court ordered a bench trial, it should have recused itself because it had "prejudged the case." On both contentions, we disagree. Therefore, we affirm.

¶ 2. On October 7, 1999, Paul Sr. executed a will. In his will, he disinherited his son Paul Jr., leaving all of his property to his grandson Paul III. Paul Sr. died on May 18, 2000. Thereafter, Paul Jr. filed a petition to set aside the will on the grounds of undue influence. Paul III filed a petition for administration. Paul Jr. filed a timely jury demand. A pretrial conference was held on November 20, 2000, and the matter was scheduled for a jury trial to begin on June 12, 2001.

¶ 3. On day one of the trial, before the jury was impaneled, Paul III made a motion to strike the jury, informing the trial court, Judge Marianne Becker, that he believed under Bermke v. Security First National Bank of Sheboygan, 48 Wis. 2d 17, 179 N.W.2d 881 (1970), the matter was not properly tried to a jury. After reviewing Bermke, the trial court agreed with Paul III and held that a party is not entitled to a jury trial in a will contest. The triad court decided to continue the trial as a bench trial. Paul Jr. objected to a bench trial, arguing that even if he was not entitled to a jury trial, Paul III had waived his right to object to a trial by jury by first doing so on the morning of trial. Additionally, Paul Jr. objected to Judge Becker conducting the bench trial and requested that she recuse herself on the basis that she had previously participated in settlement negotiations, dismissed a guardianship petition for Paul Sr. and presided over other actions involving one or more of the principal parties. Judge Becker determined that she was not prejudiced or biased against any litigant in the case and thus did not recuse herself from the case.

¶ 4. After a four-day bench trial, the trial court issued its decision. In its written findings of fact, the trial court stated:

Undue influence on the testator, Paul R. Sharpley, Sr. was not present. Paul R. Sharpley, III did not exercise-undue influence on Paul R. Sharpley, Sr. Paul R. Sharp-ley, Sr. was not in fear of Paul R. Sharpley, III at the time of the execution of the will.

The trial court concluded that Paul Jr. did not meet the clear, satisfactory and convincing burden of proof required to establish his contentions of undue influence and ordered the will of Paul Sr. admitted to probate. Paul Jr. appeals.

¶ 5. On appeal, we uphold a trial court's factual findings unless clearly erroneous. Wis. Stat. § 805.17(2) (1999-2000); DeThorne v. Gibson, 163 Wis. 2d 387, 390, 471 N.W.2d 780 (Ct. App. 1991). Upon review of the record, we uphold the trial court's factual findings because they are not clearly erroneous. In addition, Paul Jr. abandons the argument made below that Paul Sr.'s will was invalid due to undue influence. Because this argument was not renewed on appeal, it is accordingly deemed abandoned and we need not address it. A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998).

¶ 6. Paul Jr. confines his appellate arguments to claims of trial court error. He claims that the trial court erred in granting Paul Ill's motion to strike the jury. He also complains that after the trial court struck the jury and ordered a bench trial, it should have recused itself because it had "prejudged the case."

¶ 7. First, the trial court did not err in granting Paul Ill's motion to strike the jury under the rule of Bermke. In Bermke, the objectors claimed that since undue influence is a question of fact, the issue must be tried by a jury. Bermke, 48 Wis. 2d at 22. Highlighting the distinct history of probate law, our supreme court strongly disagreed:

It has been well settled in this state for one hundred years that there is no right to a trial by jury in a will contest. Probate originated in early ecclesiastical courts in respect to personal property and in the King's courts in respect to real estate and there was no right to a trial by jury. The constitution does not grant such right and our legislature has not by statute granted such a right in probate. There is no merit in the argument that every fact question must be tried by a jury.

Id. (citations omitted; emphasis added).

¶ 8. Paul Jr. argues that the supreme court's decision in Bermke was "erroneous and unfairly prejudicial." He contends that Bermke has been superseded by Wis. Stat. § 879.45(1), which currently states that "[j]ury trials may be had in court in all cases in which a jury trial may be had of similar issues under s. 805.0K1)." Sec. 879.45(1) (1999-2000). He claims that § 879.45 was enacted one year after the 1970 Bermke decision. He argues that the legislature in enacting statutes is presumed to do so with full knowledge and awareness of existing law and therefore "it may be presumed [§ 879.45(1)] was enacted in response" to the Bermke decision. He concludes that the legislature, via § 879.45(1), meant to provide for jury trials in probate court on will contest claims of undue influence. Paul Jr. is wrong.

¶ 9. Contrary to Paul Jr.'s claim, Wis. Stat. § 879.45 was not enacted one year after the Ber-mke decision. Bermke was decided in 1970 and, while § 879.45(1) became effective in 1971, it was enacted in 1969, one year before the Bermke decision. Laws of 1969, ch. 339, §§ 26, 28. There can be no presumption that the enactment of § 879.45 was a legislative response to Bermke — our legislature has many talents; prescience is not one of them.

¶ 10. Furthermore, the legislative comment, which accompanies the 1969 enactment of Wis. Stat. § 879.45, states: "This section retains the existing statute [i.e., Wis. Stat. § 270.07] on jury trials in probate court." Laws of 1969, ch. 339, § 26 (emphasis added). Neither the current § 879.45 nor the preceding § 270.07 has been interpreted by our supreme court to confer the right to a jury trial in a will contest.

¶ 11. Paul Jr. also argues that Bermke was overruled by Wickert v. Burggraf, 214 Wis. 2d 426, 570 N.W.2d 889 (Ct. App. 1997). We disagree. Wickert is distinguishable from the case at bar. Wickert dealt with a civil action alleging the tort of intentional interference with an expected inheritance. Id. at 428-29. We appreciate Paul Jr.'s argument that his will contest is very much like the tort action in Wickert. However, in crucial respects, it is also very different. Most notably, the type of remedy in a tort case is damages against those who interfered with the expected inheritance. In a probate case, the remedy is the setting aside of the will.

¶ 12. The history of Wis. Stat. § 879.45(1) reveals that the type of remedy is integral in determining whether a litigant is entitled to a jury trial. Section 879.45(1) was enacted in 1969. At that time and through 1973, we see that not only was § 879.45(1) meant to retain Wis. Stat. § 270.07, it also referred directly to it:

GENERALLY. Jury trials may be had in probate court in all cases in which a jury trial may be had of similar issues under s. 270.07.

Section 270.07 provided:

(1) An issue of fact in an action for the recovery of money only, or of real or personal property ... must be tried by a jury except as otherwise provided in this chapter and except that equitable defenses or counterclaims are triable by the court. Every other issue must be tried by the court, but the court may order the whole issue or any specific question of fact involved therein to be tried by a jury; or may refer an issue . . .. (Emphasis added.)

Then, in 1975, § 270.07 ceased to exist and Wis. Stat. § 805.01 was enacted by supreme court order. S. Or. Order, 67 Wis. 2d 689 (eff. 1976). Judicial Council Committee notes on § 805.01 disclose that subsec. (1) of § 805.01 "is the counterpart of s. 270.07." Judicial Council Committee's Note, 1974. Since the former § 270.07 provided that actions to recover "money only, or of real or personal property ... must be tried by a jury" and since the history of the current § 805.01 provides that the statute is the counterpart of former § 270.07, it follows that the same principle is meant to apply under the current statute. Paul Jr. did not seek damages of money or of real or personal property; he sought to set aside Paul Sr.'s will. The setting aside of a will is not the type of remedy that triggers entitlement to a jury trial. The rule of Bermke states the current law: a party is not entitled to a jury trial in a will contest.

¶ 13. In a final attempt to support his claim that he was entitled to a trial by jury, Paul Jr. argues that the trial court erred in not finding that Paul III had waived his right to object to a jury trial. The waiver rule is one addressed to the efficient administration of judicial business. State v. Nichelson, 220 Wis. 2d 214, 229, 582 N.W.2d 460 (Ct. App. 1998). Courts have discretion to determine whether a finding of waiver is appropriate. State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999). A discretionary determination is the product of a rational mental process by which the facts of record and law relied upon are stated and considered together for the purpose of achieving a reasoned and reasonable decision. State v. Verhagen, 198 Wis. 2d 177, 191, 542 N.W.2d 189 (Ct. App. 1995). We will not reverse a trial court's discretionary determination if the record reflects that discretion was truly exercised; in fact, we will look for reasons to sustain the decision. Id. The trial court did not find waiver and did not err in proceeding immediately to the bench trial after holding that a jury trial was not proper. It noted that the jury had not yet been impaneled and therefore valuable citizen and judicial resources had not been squandered. Upon review, we determine no reason to upset the trial court's discretionary decision on waiver.

¶ 14. We now address Paul Jr.'s argument that Judge Becker should have recused herself once she decided that the matter would be tried to the court because he believes she had "prejudged the case." Paul Jr. bases his argument on the fact that Judge Becker conducted settlement talks with the parties while everyone still thought the matter would be tried to a jury. He also bases this'argument on the fact that Judge Becker presided at a competency hearing in a guardianship proceeding involving Paul Sr.

¶ 15. The mandatory disqualification statute, Wis. Stat. § 757.19(2) (1999-2000), establishes seven situations in which a judge must disqualify himself or herself from an action or proceeding. State v. Am. TV & Appliance of Madison, Inc., 151 Wis. 2d 175, 181-82, 443 N.W.2d 662 (1989). The first six of these situations are susceptible of objective determination, that is, without recourse to the judge's state of mind. Id. at 182. For example, para, (a) requires disqualification when a judge is related to any party or counsel to a party or the spouse of any party or counsel within the third degree of kinship. Id. The effect, if any, of such a relationship upon a judge's ability to act impartially in a case is immaterial; the very existence of the relationship creates a disqualification by law. Id. The same type of objective determination applies to the situations described in paras, (b) through (f). Id.

¶ 16. However, the seventh situation requiring disqualification set forth in Wis. Stat. § 757.19(2) (1999-2000) concerns not what exists in the external world subject to objective determination, but what exists in the judge's mind. Am. TV & Appliance, 151 Wis. 2d at 182. Paragraph (g) requires disqualification "[w]hen a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner." Sec. 757.19(2)(g). The determination of a basis for disqualification here is subjective. Am. TV & Appliance, 151 Wis. 2d at 182. Section 757.19(2)(g) mandates a judge's disqualification only when that judge makes a determination that, in fact or in appearance, he or she cannot act in an impartial manner. Am. TV & Appliance, 151 Wis. 2d at 183. It does not require disqualification in a situation where one other than the judge objectively believes there is an appearance that the judge is unable to act in an impartial manner. Id.

¶ 17. Here we do not have a mandatory recusal situation. Thus, the test is a subjective one committed to the judgment of the trial court. Judge Becker determined that her involvement in the settlement negotiations and her limited involvement in the prior guardianship proceeding did not create a need for self-disqualification. We see nothing in the record that contradicts Judge Becker's determination that she could be objective.

By the Court. — Judgment affirmed.

       WISCONSIN STAT. § 805.01(1) (1999-2000) provides:
      The right of trial by jury as declared in article I, section 5, of the constitution or as given by a statute and the right of trial by the court shall be preserved to the parties inviolate.

       WISCONSIN Stat. § 757.19(2) (1999-2000) states:

        (2) Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs:
      (a) When a judge is related to any party or counsel thereto or their spouses within the 3rd degree of kinship.
      (b) When a judge is a party or a material witness, except that a judge need not disqualify himself or herself if the judge determines that any pleading purporting to make him or her a party is false, sham or frivolous.
      (c) When a judge previously acted as counsel to any party in the same action or proceeding.
      (d) When a judge prepared as counsel any legal instrument or paper whose validity or construction is at issue.
      (e) When a judge of an appellate court previously handled the action or proceeding while judge of an inferior court.
      (f) When a judge has a significant financial or personal interest in the outcome of the matter. Such interest does not occur solely by the judge being a member of a political or taxing body that is a party.
      (g) When a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Ary L. Jones, Sr., Defendant-Appellant.
    Court of Appeals

      No. 01-2969-CR.

      Submitted on briefs May 9, 2002.

    Decided July 3, 2002.

    2002 WI App 208
    (Also reported in 650 N.W.2d 844.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Arthur B. Nathan of Racine.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and David J. Becker, assistant attorney general.
    Before Nettesheim, EJ., Brown and Snyder, JJ.
   BROWN, J.

¶ 1. Ary L. Jones, Sr., claimed to have been a prisoner of war in Vietnam, a circumstance that the trial court then considered in issuing its original sentence. Later, the court found that Jones had lied and resentenced him to a longer term. Jones now asserts that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prevented his resentencing after the fabrication was brought to the attention of the trial court. We conclude that where, as here, the defendant makes a fraudulent representation to the court, which the court accepts and relies upon in granting a sentence, the court may later declare the sentence void and double jeopardy does not bar a subsequently increased sentence. Therefore, we affirm the trial court's new sentence.

¶ 2. Jones was convicted of multiple drug offenses involving heroin and crack cocaine. At the time of sentencing, the court had a presentence investigation report that noted Jones had served in the military in Vietnam and had been a prisoner of war. The report indicated that Jones did not want the army contacted and did not want to dwell on his military record. His attorney spoke for him at sentencing and made the following representations about his military history:

Klt'B extremely significant, both in understanding [Jones'] mental state and understanding the kind of person that he is, to realize that he served his country in Vietnam when many others refused to do that. He spent 3 months and 18 days in a POW camp, suffered a wound to his head just prior to The Cong getting him and taking him to that camp. He's still got that wound right above his eye. It was worked on by the medics in the field, he was then taken to the POW camp, and the time that he spent in Vietnam and particularly in the camp is something that has stuck with him. I think that he does have some problems still relating back to that time.
I'm not a real believer in all of these syndromes that the psychologists come up with, but I can tell just from my discussions with Mr. Jones when he talks about his time in the Army and particularly his time in the POW camp that it's still a disturbing factor to him. He had his jaw broken by a guard in the camp. Once he escaped, he escaped with a number of his fellow prisoners, he had to have the jaw rebroken and reset because, of course, they didn't do anything for him while he was in the camp.
He told me about the meals that they had, which had been urinated on by the guards before it was given to them. The many nights they spent in fear of their own lives while they were in the camp. How they orchestrated their escape and the fact that they had all agreed in advance that if anybody fell during the escape they were to be left.
It's a time that is almost unimaginable to me. I'm approximately Mr. Jones' age, and I wasn't there and he was.
And I think that the court should not only give him credit for the time that he spent in jail here in Waukesha, but he deserves a lot of credit for the time that he spent in a prisoner of war camp while serving his country.

¶ 3. Jones' attorney then asked for probation with counseling while the State recommended ten years' incarceration with three years' extended supervision on each count to run concurrently. Ultimately, the court imposed a sentence less than the State recommended based, in large part, upon counsel's discussion of Jones' Vietnam War experience, an issue we will discuss in detail later in the opinion.

¶ 4. Two weeks later, on April 18, 2001, the court called a hearing to inform the parties that it had received a fax from the "POW network" indicating that Jones had never been a prisoner of war in Vietnam as he had claimed at sentencing. The court then directly asked Jones whether he had been a prisoner of war in Vietnam. Jones replied, "No."

¶ 5. Based on Jones' admission, the court determined that a fraud had been perpetrated upon the court "[a]nd it's immaterial for purposes of sentencing whether the defendant himself said it or had his counsel give that information to the court." In addition, the court found that the fraud "was a very substantial factor in the court's sentencing, and the sentence would have been different absent that information." The court then allowed Jones' attorney to withdraw as counsel and set the matter for resentencing at a subsequent hearing.

¶ 6. At the resentencing hearing on April 30, 2001, the court relied on United States v. Bishop, 774 F.2d 771 (7th Cir. 1985), to justify imposing an increased sentence over Jones' double jeopardy objections. The court considered and again rejected the State's recommendation of ten years' incarceration, instead sentencing Jones to seven years' confinement with three years' supervision on the cocaine convictions, one year of confinement with one year of supervision for delivery of a noncontrolled substance represented as a controlled substance, and fifteen years of probation on the heroin conviction.

¶ 7. On appeal, Jones reasserts that the increased sentence violates his double jeopardy rights. He argues that the sole purpose of resentencing was to punish him, as there is nothing in the record to justify the length of time imposed "other than the court's indignation at having been taken in by the defendant."

¶ 8. Both the Wisconsin and United States Constitutions contain double jeopardy clauses and because they are coextensive, we will treat them as one in our discussion. State v. Burt, 2000 WI App 126, ¶ 7, 237 Wis. 2d 610, 614 N.W.2d 42, review denied, 2000 WI 121, 239 Wis. 2d 309, 619 N.W.2d 92 (Wis. Sept. 12, 2000) (No. 99-1209-CR). Whether Jones' double jeopardy protections have been violated is a question of law that we review de novo. Id.

¶ 9. The leading United States Supreme Court opinion on the double jeopardy limitations to increasing a sentence after its imposition is United States v. DiFrancesco, 449 U.S. 117 (1980). DiFrancesco sets out two principles that apply to the issue of whether a court may increase a sentence after service has begun. First, there no longer exists a per se rule that prohibits a court from increasing a defendant's sentence after service has begun. United States v. Fogel, 829 F.2d 77, 86 (D.C. Cir. 1987). Second, "[i]f a defendant has a legitimate expectation of finality [in the sentence], then an increase in that sentence is prohibited by the double jeopardy clause." Id. at 87. On the other hand, if a circumstance exists to undermine the legitimacy of that expectation, then a court may permissibly increase the sentence. Id.

¶ 10. In Wisconsin, we have recognized the principle that the application of the double jeopardy clause to an increase in a sentence turns on the extent and legitimacy of a defendant's expectation of finality in that sentence. Compare Burt, 2000 WI App 126 at ¶¶ 11-12 (where trial court erroneously pronounced sentence as concurrent rather than consecutive, the defendant had no legitimate expectation that the court would not correct its slip of the tongue on the day of sentencing) with State v. Willett, 2000 WI App 212, ¶ 6, 238 Wis. 2d 621, 618 N.W.2d 881, review denied, 2000 WI 121, 239 Wis. 2d 311, 619 N.W.2d 94 (Wis. Oct. 17, 2000) (No. 99-2671-CR) (defendant had legitimate expectation of finality in a sentence based on trial court's incorrect understanding of the law; double jeopardy protections prevented rectifying the mistake four months later with a stiffer penalty). We, therefore, adhere to the tenet that the analytical touchstone for double jeopardy is the defendant's legitimate expectation of finality in the sentence, which may be influenced by many factors, such as the completion of the sentence, the passage of time, the pendency of an appeal, or the defendant's misconduct in obtaining sentence. See State v. Hardesty, 915 P.2d 1080, 1085 (Wash. 1996).

¶ 11. The case before us, however, presents a double jeopardy issue of first impression in Wisconsin: can a defendant have a legitimate expectation of finality in a sentence that was induced by his or her purposeful misrepresentations? Common sense dictates that no reasonable person could hold a legitimate expectation of finality in a sentence procured by fraud and, indeed, the case law fully supports this commonsense conclusion.

¶ 12. In United States v. Jones, 722 F.2d 632, 638-39 (11th Cir. 1983), the Eleventh Circuit Court of Appeals adopted this approach in language often quoted by other jurisdictions:

For the purpose of determining the legitimacy of a defendant's expectations, we draw a distinction between one who intentionally deceives the sentencing authority or thwarts the sentencing process and one who is forthright in every respect. Whereas the former will have purposely created any error on the sentencer's part and thus can have no legitimate expectation regarding the sentence thereby procured, the latter, being blameless, may legitimately expect that the sentence, once imposed and commenced, will not later be enhanced. Under this analysis, unless the statute explicitly provides for sentence modification, as in DiFrancesco, or the defendant knowingly engages in deception, a sentence may not be altered in a manner prejudicial to the defendant after he has started serving the sentence.

Accord, Bishop, 774 F.2d at 776 n.8; Hardesty, 915 P.2d at 1085; State v. Carvajal, 709 P.2d 1366, 1369-70 (Ariz. Ct. App. 1985) (majority of cases holds the double jeopardy clause does not bar subsequent resentencing "where a defendant through fraud or collusion actively engineered an inadequate sentence").

¶ 13. We can conceive of no reason to apply a contrary rule. As the State points out, a criminal defendant who has perpetrated a fraud on the court cannot be permitted to reap its benefits. Such a result would strike at the very heart of our justice system which is based upon the honesty and truth of its participants. Bishop, 774 F.2d at 776.

¶ 14. The rule we adopt in Wisconsin, therefore, is that when a defendant makes a fraudulent representation to the sentencing court and the court accepts and relies upon that representation in determining the length of the sentence, the defendant has no reasonable expectation of finality in the sentence. The court may later declare the sentence void and double jeopardy will not bar subsequent resentencing to place the defendant in the position he or she would have been in if the fraud or corruption had been exposed at the time of the original sentence. Id. at 774.

¶ 15. Jones does not deny the legal authority establishing this rule; rather, he argues that the trial court did not rely on his attorney's misrepresentations regarding his prisoner of war status at the original sentencing hearing. He also asserts that the harsher sentence was imposed to punish him for the lie rather than for the conduct constituting the convictions.

¶ 16. The record before us belies both of Jones' assertions. At the April 18 hearing which the court held after discovering that Jones had lied about his prisoner of war status, the court determined that "[Jones' lie] was a very substantial factor in the court's sentencing, and the sentence would have been different absent that information." This conclusion is borne out by the trial court's opening remarks at the original sentencing:

[I]n dealing with the character of the defendant, I'm struck by. . . the contrast between the two types of war that are brought to bear at this sentencing hearing. The first was the Vietnam war in which there was a Communist threat to this country. Ultimately this country won the cold war, and I believe in large part due to the sacrifices that our soldiers made in Vietnam. But we're engaged in another war in this country at this time and that's the drug war. And I'm sorry to see, sir, that you're a warrior on the wrong side of the drug war.

¶ 17. Later in its sentencing remarks, the trial court declined to impose the ten years' imprisonment requested by the prosecutor, even though it did not believe that the recommendation was "unreasonable," because it did not "think ten is necessary to send the message in this particular case, especially taking into account your character from the past." Read in the context of the trial court's earlier remarks about Jones' character, it seems plain that the court's reference to "your character from the past" refers to Jones' service in Vietnam, including his stint as a prisoner of war. Moreover, Jones' counsel explicitly asked for sentencing credit based on the time Jones spent in a prisoner of war camp "serving his country."

¶ 18. We, therefore, agree with the trial court that Jones' false representation concerning his status in Vietnam was a substantial factor in the original sentence and, pursuant to the legal principles established above, the court had authority to remedy the erroneous sentence in a subsequent resentencing hearing.

¶ 19. We also see no evidence in the record that the increased sentence was based on the "court's indignation at having been taken in by the defendant" rather than on the gravity of the crimes themselves. At the April 30 resentencing hearing, the court emphasized the community's need for protection from street level drug dealers and then noted the risk Jones assumed "by the statements that were proferred to the court in terms of being a POW. That was a risk he was willing to take, it was done for the purpose of having an impact on this court, and it did have an impact on the court at the time of the sentencing." The court then sentenced Jones to three additional years' incarceration on the cocaine convictions. With respect to the conviction of delivery of heroin, the court found "there are additional probationary needs here based upon the fraud that was perpetrated on the court. . . and, therefore, this court feels that some additional time is necessary on a period of probation." The court then went on to withhold the imposition of sentence and placed Jones on fifteen years of probation on the heroin conviction. We discern no abuse of judicial power in this record transcript; indeed, notwithstanding the fraud upon the court, the court still rejected the prosecutor's recommendation of ten years' incarceration as unnecessary.

¶ 20. Finally, we note that at the April 30 hearing, Jones was represented by new counsel, who suggested that Jones' fabrication about his prisoner of war status was concocted while he was in jail and was never intended for the court to rely on. Again, at a subsequent hearing on October 23, the attorney suggested that the fabrication was the result of Jones' "grandiose" type of personality rather than a purposeful attempt to deceive the court. We recognize that a defendant, through his or her attorney, may engage in some "puffery" in presenting a zealous defense and such "puffery" does not raise the specter of fraud. But there is a difference between engaging in "puffery" and fraudulently representing a position that leads to a grant of privilege. See Carvajal, 709 P.2d at 1369. This case did not involve innocent bragging or exaggeration but the representation of specific false facts regarding Jones' prisoner of war status designed to evoke leniency from the court. Having successfully achieved the lenient sentence through fraud, Jones must now bear the consequences imposed by the court to remedy the erroneous sentence.

By the Court. — Judgment and order affirmed.

       In United States v. Jones, 722 F.2d 632, 634-35 (11th Cir. 1983), the district court had relied on erroneous information in sentencing the defendant to six months' imprisonment and imposing a $10,000 fine. Once the district court learned of its mistake, the court resentenced Jones to an increased term of incarceration. Id. at 635. The Eleventh Circuit reversed, stating that since Jones had begun to serve his sentence, his legitimate expectation in the finality of his sentence barred any resentenc-ing by the court. See id. at 638. Significantly, Jones had not provided the erroneous information to the court and thus at the original sentencing he held a legitimate belief in the finality of his sentence. Id. By contrast, in United States v. Bishop, 774 F.2d 771, 776 (7th Cir. 1985), the defendant purposefully misrepresented the term of his sentence in Indiana in order to gain modification of his federal sentence. The court held that "[i]f a defendant, such as Bishop, intentionally commits a fraud upon the court by providing the court with erroneous information that the court relies upon in determining the length of the sentence, he certainly must bear the consequences of his fraudulent and deceitful actions." Id.

      In State v. Hardesty, 915 P.2d 1080, 1088-89 (Wash. 1996), the Supreme Court of Washington held that a defendant who fully serves a sentence procured by fraud may be resentenced without violation of the double jeopardy clause. In that case, however, the State failed to prove the fraudulent representation by clear and convincing evidence. Id. at 1089. In State v. Carvajal, 709 P.2d 1366, 1367 (Ariz. Ct. App. 1985), the defendant misrepresented to the court the availability of a motorcycle for restitution to the victims. The court determined that his probation could be revoked based on fraud without violation of double jeopardy protections. Id. at 1369-70.

       The State questions whether "new factor" analysis is applicable in this case where an enhanced sentence is imposed to correct a fraudulently procured sentence. There is authority in the case law for the proposition that a trial court may only increase a sentence based on new factors brought to the court's attention. See, e.g., State v. Sepulveda, 119 Wis. 2d 546, 559-61, 350 N.W.2d 96 (1984) (applying "new factor" analysis to affirm trial court decision to set aside probation and impose a three-year term of incarceration where defendant was denied admission to mental health facility which was condition of probation); Scott v. State, 64 Wis. 2d 54, 59-60, 218 N.W.2d 350 (1974) (trial court cannot increase a valid sentence based on mere reflection, but needs "new factor" not known at time of sentencing). While there may be circumstances where enhancing a sentence requires satisfying the "new factor" test set forth-in Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975), we are convinced that such an analysis is not required in this case. See Bishop, 774 F.2d at 775 ("A court must be able to sentence a defendant upon accurate information and when the sentence imposed is based upon fraudulent information provided by the defendant, the court has the inherent power to correct that sentence.").


author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Robert Bintz, Defendant-Appellant.

    Court of Appeals

      No. 01-2670-CR.

      Submitted on briefs June 18, 2002.

    Decided July 9, 2002.

    2002 WI App 204
    (Also reported in 650 N.W.2d 913.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Elizabeth Davendish-Sosinski of Pewaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Christian R. Larsen, assistant attorney general.

      Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 10-21-02.

   CANE, C.J.

¶ 1. Robert Bintz appeals a judgment of conviction for first-degree murder, party to a crime, contrary to Wxs. Stat. §§ 940.01(1) and 939.05 (1987-88) and an order denying postconviction relief. Bintz argues the trial court erred by admitting the statements of his brother David in violation of the hearsay rule and the Confrontation Clause and seeks a new trial. We determine the court properly admitted ■David's statements and affirm the judgment and order.

BACKGROUND

¶ 2. Sandra Lison, a bartender at the Good Times Bar in Green Bay, disappeared in August 1987. Several days after her disappearance, Lison's body was found in the Machickanee Forest. As part of the investigation, Green Bay Police Detective Lawrence Pamperin took a statement from David Bintz. In the statement, Bintz said he had driven his brother, Robert, and a friend to the Good Times Bar to pick up a case of beer on the night Lison disappeared. Robert and the friend went in to buy the beer while David waited in the car. After returning home, David became irritated when he found out the beer had cost more than he expected. He called the Good Times and threatened to blow up the bar. David then said he fell asleep. No one was charged with Lison's murder and the investigation remained open.

¶ 3. In 1998, David was incarcerated at the Oshkosh Correctional Institution for an unrelated crime. In February, David's cellmate, Gary Swendby, began to notice David was talking in his sleep and having nightmares in which he would scream about someone killing a woman, shouting among other things "make sure she's dead." Swendby asked David about his nightmares and David eventually said he had been involved in Lison's murder. He said he and Robert decided to rob the bar after being overcharged for the beer. After the robbery, they realized Lison would be able to identify them, so they decided to kill her. David said he had repeatedly told his brother to make sure Lison was dead. David then said he and Robert put Lison in the trunk of their car, and drove "somewhere up north" to dispose of the body.

¶ 4. Swendby reported David's confession to prison officials, who contacted the Green Bay police department. In April, detective Robert Haglund took statements from Swendby and other inmates regarding David's nightmares and statements he had made about Lison's murder. Following these interviews, Haglund presented David with Swendby's statement. David said Swendby's statement was true, and then provided further information about Robert hitting and strangling Lison. David said he did not kill anyone. David and Robert were charged with Lison's murder.

¶ 5. The brothers were tried separately. In May 2000, a jury convicted David of first-degree murder, party to a crime, and the court sentenced him to life in prison. Swendby testified at David's trial. In July 2000, the court convicted Robert and sentenced him to life in prison as well. Swendby did not testify at Robert's trial because Swendby died in an automobile accident between the trials. Over Robert's objection, the court admitted Swendby's testimony from David's trial and the brothers' preliminary hearing. The court also allowed Pamperin to testify about David's 1987 statement. Because David invoked his Fifth Amendment privilege against testifying, the court found him unavailable and admitted his statements to Swendby and Pamperin as statements against interest pursuant to Wis. Stat. § 908.045(4). In addition, the court determined Swendby had become unavailable by his death and admitted his prior testimony according to § 908.045(1). The court also concluded this evidence did not violate Robert's rights under the Confrontation Clause. After the court denied his motions for postcon-viction relief, Robert appeals.

STANDARD OF REVIEW

¶ 6. Robert argues the trial court erred by admitting David's statements to Swendby and Pamperin because they were hearsay and their admission violated his confrontation rights. A trial court's decision to admit a hearsay statement is a discretionary one, and we will not reverse the trial court's decision "unless the record shows that the ruling was manifestly wrong and an [erroneous exercise] of discretion." State v. Moats, 156 Wis. 2d 74, 96, 457 N.W.2d 299 (1990). Whether the admission of hearsay violates a defendant's constitutional right of confrontation, however, is an issue subject to de novo review. State v. Webster, 156 Wis. 2d 510, 517-22, 458 N.W.2d 373 (Ct. App. 1990).

¶ 7. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." U.S. Const. amend. VI. This clause was made applicable to state criminal prosecutions in Pointer v. Texas, 380 U.S. 400 (1965). While the admission of any hearsay statement against a criminal defendant would appear to violate the literal terms of the clause, the United States Supreme Court has consistently held the clause does not always prohibit this practice. Idaho v. Wright, 497 U.S. 805, 812-13 (1990). In order for a hearsay statement to be admitted against a criminal defendant it must either (1) fall within a firmly rooted hearsay exception; or (2) contain particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, if anything, to the statement's reliability. Ohio v. Roberts, 448 U.S. 56, 66 (1980).

DISCUSSION

A. The 1987 statement

¶ 8. We will first address Robert's claim the court erred in admitting David's 1987 statement to the police because it was hearsay. The court admitted the statement as a statement against interest under Wis. Stat. § 908.045(4). This hearsay exception requires the declarant to be unavailable. Here, the court determined David was unavailable because he invoked his Fifth Amendment right against self-incrimination as provided in Wis. Stat. § 908.04(1)(a).

¶ 9. Robert argues those portions of the 1987 statement which inculpate him by placing him at the scene of the murder should have not been admitted because they were not against David's interest. In support, Robert relies on Williamson v. United States, 512 U.S. 594 (1994), in which a plurality of the Supreme Court delineated the limits of the "against penal interest" hearsay exception. The Court said the exception does not allow the admission of nonself-inculpatory statements made in generally self-inculpatory narratives. Id. at 600. While self-inculpatory statements are generally reliable, the Court noted one of the most effective ways to lie is to mix reliable statements with falsehoods. Id. at 599-600. The question is whether the statement was sufficiently against the declarant's interest that a reasonable person in his or her position would not have made the statement unless believing it to be true. Id. at 603-04. This question can only be answered by examining the surrounding circumstances. Id.

¶ 10. Here, Robert argues the parts of the statement placing him at the scene of the murder were inadmissible under Williamson. We disagree. Although Williamson says nonself-inculpatory statements are generally inadmissible, it does not establish a hard and fast rule. The court noted, "Even the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor." Id. at 603. The trial court admitted the whole statement because it saw no attempt by David to shift the blame to Robert. We agree. David's statement is self-inculpatory. It places him at the scene of the murder, gives him a possible motive, and admits his threat to blow up the bar. At the time he gave the statement, however, David was not under arrest, nor was he told he was a suspect in the murder investigation. He did not attempt to blame his brother for anything, and nothing suggests he was trying to curry favor with the police. These circumstances suggest David was more likely to have been truthful about Robert's being at the bar that night. We cannot say the trial court erred by admitting David's statement under Wis. Stat. § 908.045(4).

¶ 11. This, however, does not end our inquiry. As noted, not all hearsay is admissible under the Confrontation Clause. Robert argues the court improperly determined this statement had guarantees of trustworthiness and relies on Lilly v. Virginia, 527 U.S. 116 (1999). In Lilly, two brothers and another man went on a robbery binge, during which one of them killed somebody. Id. at 120. After they were apprehended, the police interviewed the men separately. Id. One of the brothers, Mark, admitted his role in the robberies and his presence at the homicide. Id. at 121. The police told Mark unless he broke "family ties," he would wind up with a life sentence. Id. Mark then implicated his brother Benjamin in the murder. Id.

¶ 12.- At Benjamin's trial, Mark invoked his Fifth Amendment privilege against testifying and the trial court admitted his statements to the police based on the "against penal interest" exception to the Virginia hearsay rule. Id. at 121-22. The Supreme Court determined the admission of the statements violated Benjamin's rights under the Confrontation Clause. Id. at 123. It said "statement against interest" hearsay exceptions are not firmly rooted under the Roberts analysis. Lilly, 527 U.S. at 126-35. The Court also said the circumstances surrounding Mark's interview did not bear particular guarantees of trustworthiness because (1) Mark was in police custody for his involvement in serious crimes and his statements were made in the presence of governmental authority; (2) he was responding to leading questions that were not subject to contemporary cross-examination; (3) Mark had a natural motive to exculpate himself; and (4) he was under the influence of alcohol at the time of questioning. Id. at 139.

¶ 13. Here, Robert suggests David's situation is similar enough to Mark's that Lilly precludes the introduction of David's 1987 statement. We disagree. Robert contends David's statements are unreliable based on all the same reasons Mark's were, except for being under the influence of alcohol. While it is true David was interviewed at the police station, there is no evidence he was told he was a suspect. David was not in custody and there is no indication he was threatened with prosecution or asked leading questions. Finally, nothing in David's statement is especially inculpatory in respect to shifting blame toward Robert.

¶ 14. Robert also attempts to distinguish State v. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187. In Murillo, Luis Murillo was arrested after a witness put him at the scene of a shooting. Id. at ¶¶ 2-3. During the interview, Luis said his brother Eddie had been the actual shooter. Id. at ¶ 5. Prior to saying this, Luis had cried, prayed, paced, collapsed, and said he was afraid to testify against his brother. Id. at ¶ 4. At trial, Luis refused to testify. The court admitted his statement to the police as against his penal and social interest over Eddie's Confrontation Clause objection. We affirmed, holding Luis's actions and demeanor during the interview sufficiently established the reliability of his statement. Id. at ¶ 25. Although Eddie argued Lilly was applicable, we noted the only similarities between Murillo and Lilly was the fact Mark and Luis were brothers of the people they turned against. Id. at ¶ 26. We believe that is the case here as well. While Robert correctly notes this court saw little, if any, reason for Luis to shift blame in Murillo, we do not see any in David's 1987 statement to the police either. David was not in custody nor was he accused of any crimes. He was not being asked leading questions and did not attempt to shift blame to his brother. The trial court properly admitted David's statement to the police.

B. The statements to Swendby

¶ 15. Robert also argues the trial court erred by admitting the transcripts of Swendby's testimony at the preliminary hearing and David's trial. Again, Robert attacks Swendby's testimony as inadmissible hearsay and as violative of his Confrontation Clause rights. We note Swendby's testimony presents a hearsay within hearsay problem, that is, David's confession to Swendby is hearsay, as is Swendby's prior testimony. Wisconsin Stat. § 908.05 requires each of these levels of hearsay to meet an exception to the rule in order to be admissible. The trial court found David unavailable because of his right not to testify against himself, and determined his confession was a statement against interest. The court then determined Swendby was unavailable because he had died, and admitted the transcripts as prior testimony. Wis. Stat. §§ 908.04(1)(d), 908.045(1).

¶ 16. Robert argues the court's admission of David's statements to Swendby through prior transcripts resulted in an unfair trial and a denial of Robert's due process rights. He contends since he was unable to cross-examine either David or Swendby, his due process rights have been violated. While Robert admits Swendby was cross-examined at David's trial as well as the preliminary hearing, he argues this is inadequate. We disagree.

¶ 17. First, we agree with the trial court's resolution of the double hearsay issue. David was unavailable and his statement would tend to subject him to criminal liability. Further, the trial court' correctly ruled Swendby was unavailable and properly admitted his former testimony. We are not persuaded by Robert's claim his limited cross-examination of Swendby at the preliminary hearing was inadequate. Preliminary hearing testimony is presumed to be reliable. See State v. Bauer, 109 Wis. 2d 204, 216, 325 N.W.2d 857 (1982). Simply because the hearing is limited to the issue of probable cause does not make preliminary hearing testimony inadmissible. Id. at 218. Our supreme court, citing United States, ex rel. Haywood v. Wolff, 658 F.2d 455 (7th Cir. 1981), noted "the Supreme Court has never said that the opportunity for cross-examination afforded at the preliminary hearing must be identical with that required at trial." Id.

¶ 18. Robert also argues the admission of Swendby's trial testimony was improper because Swendby's cross-examination by David's attorney had a different purpose and goal than Robert's would have. Robert argues because his defense was he had nothing to do with Lison's murder and David argued he saw the murder, but was not involved, David's interest in cross-examining Swendby was not similar enough to comply with Wis. Stat. § 908.045(1). We disagree. Robert's and David's interests must only be similar, not identical. See State v. Hickman, 182 Wis. 2d 318, 327, 513 N.W.2d 657 (Ct. App. 1994).

¶ 19. This case is akin to State v. Barksdale, 160 Wis. 2d 284, 466 N.W.2d 198 (Ct. App. 1991). In Barks-dale, two defendants were tried separately for first-degree reckless homicide, party to a crime. Id. at 286-87. In between the trials, a key eyewitness died, and his testimony from the first trial was admitted at the second. Id. at 287. In affirming the trial court's decision, we noted the two defendants' interests in cross-examining the witness were very similar because it was immaterial who actually did the killing. Id. at 288-89. The same can be said for Robert and David. Because they were both charged as parties to a crime, it was irrelevant which one of them actually killed Lison. Their interests in cross-examining Swendby were very similar and meet the requirements of Wis. Stat. § 908.045(1).

¶ 20. Robert also argues the admission of Swendby's prior testimony violated his confrontation rights. We disagree. Viewing both levels of hearsay presented by admitting Swendby's testimony, we conclude they both meet the Roberts test. Looking first at Swendby's prior testimony, we note it falls under a firmly rooted hearsay exception and there do not appear to be any unusual circumstances suggesting it should be considered any less reliable. See Bauer, 109 Wis. 2d at 216.

¶ 21. David's statements to Swendby are not so cut and dried. Robert correctly argues the statements, as statements against interest, are not "firmly rooted" hearsay exceptions. Lilly, 527 U.S. at 126. He also contends they lack the guarantees of trustworthiness required by the Roberts test. Robert points to the circumstances surrounding the statements, primarily that they were made in prison to another prisoner. He argues this makes them wholly unreliable because they would actually reflect David's attempts to impress other prisoners. Robert also argues David's "sleep talk" statements are unreliable.

¶ 22. David's statements to Swendby are more reliable because they were made to a fellow prisoner. In comparison to Lilly, we note none of the factors that made Mark's statement inadmissible there are present here, most notably the lack of police involvement and motivation to exculpate himself. In fact, in Lilly, the Court noted the only exception to the general rule excluding accomplice confessions is Dutton v. Evans, 400 U.S. 74 (1970), which, as Chief Justice Rehnquist points out in his concurrence, involved a confession to a fellow inmate, not the police. Lilly, 527 U.S. at 132, 147 (Rehnquist, C.J., concurring). Confessions to fellow inmates, like those to family and friends, "bear sufficient indicia of reliability to be placed before a jury without confrontation of the declarant." Id. at 147. As for admitting evidence of David's sleep talk, Robert makes no specific argument why this should be considered any less reliable than statements made while awake. The trial court's admission of Swendby's prior testimony did not violate Robert's confrontation rights.

By the Court. — Judgment and order affirmed.

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

       Wisconsin Stat. § 908.045(4) provides:
      Hearsay exceptions; declarant unavailable. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
      (4) Statement against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated.

       In Williamson v. United States, 512 U.S. 594 (1994), the Court interpreted Fed. Rule Evid., 804(b)(3), the federal counterpart to Wis. Stat. § 908.045(4).

       WISCONSIN Stat. § 908.045(1) provides:
      Hearsay exceptions; declarant unavailable. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
      (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another proceeding, at the instance of or against a party with an opportunity to develop the testimony by direct, cross-, or redirect examination, with motive and interest similar to those of the party against whom now offered.


text:
    State of Wisconsin ex rel. Robert Bingen, Donald Heesen, Norman Faber and Arthur Weis, Plaintiffs-Respondents, v. Lisa Bzdusek and James Johnson, Defendants-Appellants.
    Court of Appeals

      No. 01-3015.

      Submitted on briefs June 7, 2002.

    Decided July 10, 2002.

    2002 WI App 210
    (Also reported in 650 N.W.2d 894.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Raymond J. Pollen and Ryan G. Braithwaite of Crivello, Carlson & Ment-kowski, S.C., Milwaukee.

      On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Phillip J. Eckert of O'Meara Law Firm, LLP, West Bend.
    Before Nettesheim, EJ., Brown and Anderson, JJ.
   ANDERSON, J.

¶ 1. Lisa Bzdusek and James Johnson appeal from a circuit court decision granting a motion for summary judgment concluding that their election to the Addison town board was in violation of Wis. Stat. § 17.25 (1999-2000) because the board excluded the town clerk from participating in the nomination process, and therefore Bzdusek and Johnson had no right to hold their respective offices. We agree with the trial court's conclusion. Therefore, we affirm.

¶ 2. The facts are not in dispute. This action began as a quo warranto proceeding to challenge the right of Bzdusek and Johnson to hold their respective offices on the town board. Before we address the issue, we briefly discuss its background.

¶ 3. Florida Power and Light Energy applied for a permit to construct a wind turbine farm in the town of Addison. FPL Energy's application and the subsequent pro and con reactions to its application have dominated Addison politics since well before the April 2001 election that gave Bzdusek and Johnson their offices. In June 2001, the town supervisor and town chairperson resigned from the board. As a result, the board consisted of three instead of the usual five members. Two board members were against the proposed wind turbines and one was for it.

¶ 4. Throughout the month of July 2001, the board member in support of the wind turbines, Arthur Weis, failed to attend board meetings. Thus, with three of the five seats empty at board meetings, a quorum of the board was prevented. Without a quorum, the board could not act in any capacity. This not only resulted in a standstill on the wind turbine issue, but also prevented the board from engaging in any ministerial actions. A meeting was convened on August 8, 2001, to fill the vacancies on the board.

¶ 5. At the August 8, 2001 meeting, the board adopted the following motion:

I move that nominations to fill the vacancy of Town Chairman and Town Supervisor be presented by Town Board members attending this meeting. If a nomination is presented, and the nomination is seconded, the board members will vote on accepting the nomination. A nomination which does not receive a second will not be considered. More than one nomination can be presented for the Boards [sic] consideration. Any Board member may move to close nominations, and if the board approves the closing of the nominations, vote will then be taken on those nominations which have been received by the Town Board. That vote will consist of the votes of those supervisors in attendance and the Town Clerk. •
A roll call vote should then be taken on these nominations. The chairperson will call the roll call and the Town Clerk will record each vote as the vote is announced.

¶ 6. Afterwards, in accordance with the adopted motion, the nomination process proceeded without the participation of the town clerk. Supervisors William Clark and Ronald Roscoe nominated and seconded two candidates, Bzdusek and Johnson, for town chairperson. No further nominations were made and a roll call vote was taken, with the following election result: Clark and Roscoe voted for Bzdusek and town clerk Ellen Wolf and Weis voted "no" for Bzdusek and "no" for Johnson. The town attorney declared that Bzdusek was, the town chairperson on a 2-0 vote, and Bzdusek was sworn in and joined the board for the remainder of the meeting.

¶ 7. The board then opened nominations for the remaining town supervisor position, with Roscoe and Clark nominating Johnson. Weis nominated Donald Heesen, but did not receive a second. A roll call vote was taken. Clark, Roscoe and Bzdusek voted for Johnson; Wolf and Weis voted "no." Johnson was declared town supervisor on a vote of 3-2.

¶ 8. This is a matter of first impression, and with this background, we proceed to our discussion. Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). When reviewing a summary judgment, we perform the same function as the trial court and our review is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). This case involves the validity of the process employed by the town board of Addison to nominate and elect two board members and the question of whether the subsequently elected members have a right to hold their respective offices under Wis. Stat. § 17.25. The interpretation of § 17.25 and its application to a set of facts are questions of law we also review de novo. See Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 364-65, 597 N.W.2d 687 (1999). When we are asked to apply a statute whose meaning is in dispute, our aim is to ascertain the intent of the legislature. Gold v. City of Adams, 2002 WI App 45, ¶ 11, 251 Wis. 2d 312, 641 N.W.2d 446, review denied (Wis. May 21, 2002) (No. 01-1173). To do so, we look to the plain language of the statute. Reyes, 227 Wis. 2d at 365. Only if the language of the statute renders legislative intent ambiguous do we resort to judicial construction. Id.

¶ 9. We begin by noting that there is no dispute that Wis. Stat. § 17.25 contemplates the town clerk's participation in the election of town board officers. The crux of the dispute is whether the statute requires the town clerk's participation in the nomination process. The respondents claim that the nomination power is inextricable from the voting power and that, therefore, the statute requires the town clerk's participation in both phases of the election process.

¶ 10. Bzdusek and Johnson argue that the nomination power and the voting power are two distinct powers and that the town board officers have the discretion to determine their own nominating procedure. They claim that

[t]he trial court's interpretation of [Wis. Stat.] § 17.25 was incorrect because it failed to consider the presumption that public officials act in good faith; it failed to consider § 17.25 requires and implicitly authorizes the board to adopt a procedure; the procedure adopted fell within the discretionary power of the board; the interpretation leads to an absurd result; and the interpretation unduly elevated the status and power of the town clerk, an appointed position.

We cannot agree.

¶ 11. We hold that Wis. Stat. § 17.25 is unambiguous and requires that the town clerk participate in the process of filling vacancies in town offices. The language of § 17.25 does not authorize the exclusion of the town clerk from the nomination part of the process:

Vacancies in town offices shall be filled as follows:
(1) In the town board, by the remaining supervisors and the town clerk .... (Emphasis added.)

This language means that when a midterm vacancy on the town board occurs, a vacancy that would normally be filled by a person elected by the public, the town clerk is part of the entire selection process. There is no limitation in the statute that parcels out the process of nomination from the power charged to "the remaining supervisors and the town clerk." (Emphasis added.)

¶ 12. Futhermore, we do not accept Bzdusek and Johnson's contention that Gramling v. City of Wauwatosa, 44 Wis. 2d 634, 171 N.W.2d 897 (1969), controls. Bzdusek and Johnson claim that "when the relationship between [Wis. Stat.] § 17.25 . . . and the procedure adopted by the Board is considered in light of Gram-ling, it is clear that the Board had the power to enact the procedure [which excluded the town clerk from participating in] nominating candidates to fill vacancies in the Town Board." Again, we cannot agree.

¶ 13. Gramling is distinguishable from the case at bar. Gramling addresses a claim that there was an unauthorized limitation of a mayor's power of appointment. Gramling, 44 Wis. 2d at 636. In Gramling, the City of Wauwatosa (City) enacted an ordinance changing its method of selecting a city attorney. Id. The new ordinance required that the mayor appoint the city attorney, subject to the confirmation of the city council. Id. It further provided that a reviewing panel of three attorneys, selected by the City's personnel agent in consultation with the Milwaukee Bar Association, review all applications for the office of city attorney and submit a list of at least two, but no more than three, eligible candidates from which the mayor was to make the appointment. Id. at 636-37. Gramling, the city attorney, sued the City claiming that the reviewing panel was an unauthorized limitation of the mayor's power of appointment provided for in Wis. Stat. § 62.09(3). Gramling, 44 Wis. 2d at 639. The court held that although the procedure adopted by the City somewhat limited the scope of the mayor's choices, it limited his choices to those best qualified for the position and thus did not constitute an unlawful delegation of the authority to appoint. Id. at 642.

¶ 14. In contrast to the appointment issue in Gramling, this case involves a claim that the town board employed an unauthorized election process in electing its new members. The town board officers are representatives of the electorate and here we review an electoral process employed to fill a vacancy on a town board, a selection that, but for the midterm vacancy, would normally be filled by the electorate. We do not view appointment and election issues as interchangeable, and we presume the legislature did not mean them to be construed as such.

¶ 15. Moreover, the newly adopted ordinance at issue in Gramling retained the requirement in the statute that the mayor make the appointment subject to the confirmation of the common council. All the new ordinance did was build in a threshold requirement in the selection process that the mayor's selection come from a list of candidates approved by a panel of attorneys. Hence, the ultimate selection process was in keeping with the statutory process. Here, however, the process excluded the town clerk from the nominating process. If the nomination process is part and parcel of filling a town board vacancy under Wis. Stat. § 17.25 and we hold that it is, then, unlike Gramling, the process here violates the statute.

¶ 16. In granting the respondents' motion for summary judgment, the trial court properly concluded that the elections of Bzdusek and Johnson were in violation of Wis. Stat. § 17.25 and properly adjudged that Bzdusek and Johnson had no right to hold their respective offices. While we can appreciate the frustration experienced by the remaining board members due to their inability to form a quorum, we cannot sanction a resolution that is obtained by circumvention of the law.

By the Court. — Judgment affirmed.

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

       Wisconsin Stat. § 17.25 provides:
      Vacancies in town offices shall be filled as follows:
      (1) In the town board, by the remaining supervisors and the town clerk, except as provided in s. 9.10 and except when the vacancy is caused by removal by the circuit judge as provided by law, which latter vacancy shall be filled by appointment by that judge. Vacancies in other elective town offices shall be filled by appointment by the town board, except as provided in ss. 8.50(4)(fm) and 9.10 and except for vacancies caused by removal by the judge of the circuit court which latter vacancy shall be filled by that judge. Persons appointed under this subsection to fill vacancies shall hold office for the residue of the unexpired term, except persons appointed to fill vacancies as members of the water or light-commission, which persons shall hold office only until their successors are elected and qualify and such successors shall be elected at the annual town meeting next after the vacancy occurs if the vacancy occurs 12 days or more prior to the meeting; otherwise at the annual town meeting held in the year next succeeding; but no election to fill a vacancy in the office may be held at the time of holding the regular election for the office.

        (2) In appointive offices, by appointment for the residue of the unexpired term by the appointing power and in the manner prescribed by law for making regular full term appointments thereto, except vacancies caused by removals by the judge of the circuit court which shall be filled for the residue of the unexpired term by the said judge.

       Bzdusek was declared the winner after a "2-0" vote because, like any election, the nominee with the majority of the votes wins. Bzdusek received two votes. Zero votes were cast for Johnson, the other nominee.