author: WEDEMEYER, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Kevin S. Meehan, Defendant-Appellant.
    Court of Appeals

      No. 97-3807-CR.

      Oral argument February 6, 2001.

    Decided April 17, 2001.

    2001 WI App 119
    (Also reported in 630 N.W.2d 722.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Pamela Moorshead of
      Buting & Williams, S.C. of Brookfield. There was oral argument by Pamela Moorshead.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general by William C. Wolford, assistant attorney general. There was oral argument by William C. Wolford.

    Before Wedemeyer, P. J., Schudson and Curley, JJ.
   WEDEMEYER, P.J.

¶1. Kevin S. Meehan appeals from a judgment entered after a jury found him guilty of one count of second-degree sexual assault of a child and one count of attempted second-degree sexual assault of a child, contrary to Wis. Stat. §§948.02(2) and 939.32 (1995-96). Meehan also appeals from an order denying his postconviction motion. He claims: (1) the trial court erroneously exercised discretion in allowing other acts evidence of a 1992 conviction for sexual assault of an adult; (2) the trial court erroneously exercised discretion in allowing the State to elicit testimony from a defense alibi witness about the details of the prior conviction; (3) the trial court erroneously exercised discretion when it allowed the State to read into the record the transcripts of the victim's testimony from two earlier proceedings three days after the victim's live testimony during the trial; and (4) the second count was multiplicitous to the first count and should be dismissed.

¶ 2. Because the trial court erroneously exercised its discretion in admitting the other acts evidence, because that error was compounded when the trial court allowed the cross-examination of a defense alibi witness to delve further into the details of the other acts evidence, and because the trial court erroneously exercised its discretion when it allowed the State to introduce the victim's testimony from two earlier proceedings, we reverse the judgment and the order in part. We do conclude, however, that the two counts were not multiplicitous, and we affirm that part of the order.

BACKGROUND

¶ 3. On January 1,1996, fourteen-year-old Nickolas Z. was in the steam room of the West Allis Athletic Club. Nickolas testified that a young man approached him and grabbed his penis. Nickolas pushed the man's hand away and told him "no." The man again reached out to grab Nickolas's penis, but was unable to do so. Nickolas identified the perpetrator as Meehan.*

¶ 4. Meehan was charged with one count of second-degree sexual assault of a child and one count of attempted second-degree sexual assault of a child. Prior to trial, the State moved in limine to introduce Meehan's 1992 sexual assault conviction, which involved Meehan entering the bedroom of a twenty-three-year- old man, and rubbing the man's penis while he was sleeping. The trial court allowed the admission of this evidence over defense objection.

¶ 5. Meehan presented an alibi defense. He claimed to be home with his parents at the time of the assault. As a part of his alibi defense, Joseph Holmes, Meehan's significant other, testified about a twenty-minute phone call they had during the relevant time period. Cross-examining Holmes, the State asked about his knowledge of the facts relating to the 1992 sexual assault conviction. The defense objected, but the trial court permitted it.

¶ 6. In. addition to Nickolas's trial testimony, the State moved to introduce the prior testimony of Nickolas during two earlier legal proceedings. Initially, the trial court indicated that the State would only be allowed to introduce certain portions of the earlier transcripts, but later reversed the ruling, and allowed the introduction of the entire testimony of Nickolas from the earlier proceedings to be dramatically read to the jury.

¶ 7. The jury convicted Meehan of both counts. Meehan's postconviction motions were denied. He appealed to this court. We summarily reversed his conviction on the basis that the 1992 conviction had been erroneously admitted. The supreme court granted the petition seeking review of our decision, and then summarily vacated our decision, remanding the matter to this court with instructions to reconsider the case in light of its recent decision, State v. Hammer, 2000 WI 92, 236 Wis. 2d 686, 613 N.W.2d 629. We have followed those instructions.

DISCUSSION

A. Admission of1992 Conviction.

¶ 8. Meehan first contends that the trial court erroneously exercised its discretion when it allowed the State to introduce the evidence of his 1992 sexual assault conviction involving an adult. Decisions affecting whether to admit or exclude evidence are left to the discretion of the trial court. State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983). We will uphold a trial court's evidentiary decision if the court "exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record." State v. Wollman, 86 Wis. 2d 459, 464, 273 N.W.2d 225 (1979).

¶ 9. After considering Wis. Stat. § 904.04(2), the trial court ruled that the prior conviction would be admitted. The State and Meehan reached an agreement that the following stipulation could be read to the jury:

"The parties hereby stipulate that on January 22nd, 1992, at approximately three-thirty in the morning, the West Allis Police Department was dispatched to 8009 West Greenfield Avenue to investigate a report of a sexual assault.
"Upon arrival there, the police spoke to Francis Schmidt, a man age twenty-three, who reported he had awakened in his home at that location to discover a man in his room rubbing his penis through his clothing and that the man had fled and Schmidt then called the police.
"Schmidt stated that he has never seen that man before in his life.
"The investigating officer reported that he found the defendant lying down in the front seat of a car at the scene and it appeared to the officer that the defendant was hiding. The defendant was positively identified by Schmidt as the man who sexually assaulted him.
"The defendant was questioned about the above incident and he admitted that on the above date he did enter the residence at that location and observed the occupant there asleep and went into the room and rubbed the guy's penis. The guy told him to leave so he did.
"The defendant further stated that he has a bad cocaine and alcohol abuse problem and had had a lot to drink and had used cocaine on the night in question. The defendant further stated that he has been depressed for much of his life and he knows that he really needs help and doesn't know why he did this particular act.
"On May 8th, 1992, the defendant was convicted of second degree sexual assault for this offense."

¶ 10. In reviewing whether the trial court erroneously exercised its discretion in allowing in the other acts evidence, we apply a three-step test. Hammer, 2000 WI 92 at ¶ 22. The first step is whether the other acts evidence is offered for an accepted purpose under Wis. Stat. § 904.04(2), such as motive, intent, plan, etc. Id. The second step is whether the other acts evidence is relevant under Wis. Stat. § 904.01. Id. The third step is whether the probative value is "substantially outweighed by the danger of unfair prejudice." Id. In addition, we examine each of the three steps under the "greater latitude rule," which permits "the more liberal admission of other crimes evidence in sex crime cases in which the victim is a child." State v. Davidson, 2000 WI 91, ¶ 51, 236 Wis. 2d 537, 613 N.W.2d 606.

¶ 11. Here, the State argued that the prior conviction was relevant to Meehan's intent and motive to obtain non-consensual sexual arousal or gratification from young boys and men as part of his common plan or scheme to do so. Meehan contends that the other act was not relevant for that or any other acceptable purpose. He directs us to case law emphasizing the difference between assaults on adults as compared to preying upon children. See, e.g., State v. Sonnenberg, 117 Wis. 2d 159, 173, 344 N.W.2d 95 (1984) ("It would appear to be a dangerous analogy to conclude that, because a person sought to buy sexual favors from a twenty-five-year-old woman that there is, therefore, a greater likelihood that that person had the intent, motive, or plan of assaulting a fourteen-year-old child."). He also suggests that the other factual distinctions between the two cases support exclusion of the other acts evidence. He points out that the 1992 conviction case occurred in the middle of the night, in a private residence, while the victim was sleeping. Here, the instant act occurred during the day, in a public place, while the victim was in a steam room. These differences, Meehan contends, demonstrate the lack of time, place and circumstance, which are considerations in admitting this type of evidence. See State v. Hall, 103 Wis. 2d 125, 142-43, 307 N.W.2d 289 (1981).

¶ 12. We originally agreed with Meehan's argument when this case first came before us for review. Our supreme court, however, vacated that decision and directed us to reconsider this case in light of Hammer. In Hammer, our supreme court affirmed the admission of other acts evidence in a sexual assault case, ruling that it could be admitted for proving identity, mode or method of operation, motive, and absence of mistake. Hammer, 2000 WI 92 at ¶¶ 24-26. The trial court so ruled on the basis that in "sex crime case[s], the admissibility of other acts evidence must be viewed in light of the greater latitude rule." Id. at ¶ 23. The court found that the other acts evidence and the crime charged in Hammer were similar because each involved touching victims while they were sleeping, all the victims were males around the age of majority, and all occurred during overnight visits. Id. at ¶¶ 31, 34. The court was not persuaded by the alleged distinction that the prior act involved an eighteen-to-twenty-year-old adult, and that the charged crimes involved minors. Id. at ¶ 32. In essence, our supreme court concluded in Hammer that the adult-minor distinction does not preclude the admission of the other acts evidence. Id. at ¶ 32. The court reached this conclusion for two reasons. First, the prior victim was between eighteen and twenty years old, and the current victims were fourteen, sixteen and seventeen years old. Id. at ¶¶ 31-32. Thus, the court concluded that, with the exception of the fourteen-year-old, "the ages of the young people involved were somewhat near the age of majority." Id. at ¶ 32. Second, the court concluded that the adult-child distinction "is balanced by the similarity between the two events." Id. at ¶ 33.

¶ 13. Having considered the supreme court's analysis in Hammer, we now must apply the three-step State v. Sullivan, 216 Wis. 2d 768, 576 N.W. 2d 30 (1998) other acts test as set forth above. The first step is to determine whether there was any acceptable purpose to admit the prior conviction in Meehan's case. Id. at 772. The State suggests that the evidence of the 1992 conviction was relevant to intent, motive, common scheme, and plan. The State contends that the prior act demonstrates Meehan's intent and motive to touch other males for the purpose of sexual gratification. Under the greater latitude rule, we agree that the earlier conviction could be admitted for this purpose. Similarly, the earlier conviction could be admitted to show Meehan's plan to touch male victims for his own sexual gratification. Accordingly, the first step of the Sullivan test is satisfied.

¶ 14. The next step is whether the 1992 conviction was relevant; that is, whether under Wis. Stat. § 904.01, it relates to a fact or proposition that is of consequence to the determination of the action and if it has probative value. Id. " 'The measure of probative value in assessing relevance is the similarity between the charged offense and the other act.' Similarity is demonstrated by showing the 'nearness of time, place, and circumstance' between the other act and the alleged crime." Hammer, 2000 WI 92 at ¶ 31 (citations omitted). Stated otherwise, the greater the similarity between the two acts, the greater the relevance and probative value. Here is where the State's argument fails. In Hammer, the supreme court found that the adult-child distinction did not impact on probative value because the victims, with one exception, were all near the age of majority. Id. at ¶ 32. That is not the case here. The victim in the other act was twenty-three years old, well past the age of majority. The victim in the charged act was a fourteen-year-old boy — four years away from the age of majority. This distinction is significant.

¶ 15. Moreover, unlike the "mirror image" acts in Hammer, the other act here was substantially dissimilar from the charged act. The other act occurred in a private bedroom following an illegal entry, in the middle of the night, while the victim was sleeping; and the sexual contact was through the victim's clothes. The charged act is drastically different: it occurred in a public place, during the day, while the victim was awake; the sexual contact was directly to the skin, and no illegal entry was involved. These differences greatly reduce the probative value of the 1992 conviction, and lean toward making the earlier act propensity evidence. The State suggests that the two acts are similar in several ways; i.e., both victims were young male strangers, both involved isolated victims in places close to the perpetrator's home, neither incident involved force, and the sexual contact in both was with the victim's penis. Even with the application of the greater latitude rule, we cannot conclude that this suggested list of similarities overcomes the greater dissimilarities. The State's list presents factors or similarities that are, for the most part, common to most sexual assaults.

¶ 16. For instance, stating that both cases involve young males is not entirely accurate for purposes of our analysis. We see a tremendous difference between a twenty-three-year-old male, who is post-pubescent and has had the opportunity to mature to adulthood, and a fourteen-year-old boy, who is still facing that transformation. In addition, most sexual assaults involve an isolated victim.

¶ 17. Based on the foregoing, we conclude that the two acts do not share sufficient common characteristics to allow the admission of the 1992 conviction. The probative value of the other act is slim given the substantial distinctions between the two cases. Similarly, in addressing the third step in the Sullivan test, we conclude that any slight probative value of the 1992 conviction is substantially outweighed by the danger of unfair prejudice. Sullivan, 216 Wis. 2d at 772-73. Because the two acts present significantly different characteristics, introducing the other act presents a very real potential that the jury would conclude that because Meehan committed a bad act in the past, he necessarily committed the charged crime. Accordingly, we conclude that the trial court erroneously exercised its discretion when it admitted the 1992 conviction into evidence.

B. Cross-examination of Joseph Holmes.

¶ 18. Meehan next contends that the trial court erroneously exercised its discretion when it allowed the State to cross-examine Joseph Holmes regarding the facts of the 1992 sexual assault conviction. The State concedes that this line of questioning was not relevant, but argues that it was harmless. See State v. Dyess, 124 Wis. 2d 525, 543-44, 370 N.W.2d 222 (1985). An error is harmless if there is no reasonable possibility that the error contributed to the conviction. Id. at 543-44.

¶ 19. Holmes was called as part of the defense's case to support Meehan's alibi. Holmes testified that he received a phone call from Meehan on the date of the alleged assault at approximately 3:40 p.m., which lasted for twenty minutes. During the cross-examination of Holmes, the prosecutor questioned him about his knowledge of the 1992 conviction and what Meehan had told Holmes about the conviction. Despite objections, the trial court allowed this testimony into evidence.

¶ 20. The State concedes that its admission was erroneous, but argues harmless error. We cannot agree. We have concluded that admission of the 1992 conviction was erroneous. Thus, continued focus on the 1992 conviction and the details of the crime further compounded that error. We cannot say that there is no reasonable possibility that the further discussion about the 1992 conviction had no effect on the verdict.

¶ 21. Further, even if the 1992 conviction could have been properly admitted, using this evidence on cross-examination was improper. Other acts evidence is admitted for a specific purpose. Here, arguably, the evidence was admitted to show motive, intent, or plan. The evidence cannot be admitted or used to prove bad character or propensity to commit crimes. The cross-examination of Holmes regarding the 1992 conviction was clearly used to attack Meehan's character — to show that he lied and concealed this information from his significant other. This was improper.

¶ 22. Using the 1992 conviction evidence in this manner intensified the jury's focus on the earlier crime, forced the defense to address the reason why Meehan did not disclose the 1992 conviction to Holmes, and forced the defense to defend Meehan's character. The admission of this evidence during cross-examination intensified the erroneous initial admission of the other acts evidence.

C. Admission of Victim's Prior Testimony.

¶ 23. Meehan also claims that the trial court erroneously exercised its discretion when it allowed the State to dramatically read into the record Nickolas's prior testimony from two earlier legal proceedings. A trial court's evidentiary rulings are reviewed under the erroneous exercise of discretion standard. See State v. Alsteen, 108 Wis. 2d 723, 727, 324 N.W.2d 426 (1982). If a trial court applies the proper law to the established facts, we will not find a misuse of discretion if there is any reasonable basis for the trial court's ruling. Id.

¶ 24. Three days after Nickolas appeared in court and testified in person during the trial, the State indicated that it intended to read into the record Nickolas's prior testimony from the preliminary hearing and the probation revocation hearing in its entirety. Meehan objected, arguing that allowing the entire testimony would be tantamount to allowing Nickolas to testify twice. The trial court initially agreed, and directed the State to introduce only selected parts. A short time later, however, under the State's suggestion that introducing selected parts would violate the rule of completeness, the trial court reversed itself and allowed the entire testimony to be read dramatically to the jury.

¶ 25. The trial court admitted the entire prior testimony under two theories: (1) the testimony constituted prior consistent statements under Wis. Stat. § 908.01(4)(a)2; and (2) the testimony could be admitted for the sake of completeness. We agree with Meehan that the trial court's decision was erroneous under either theory. The general rule is that prior consistent statements are not admissible because they are hearsay. Section 908.01(4)(a)2 provides an exception to the general rule under certain circumstances. Here, the State failed to demonstrate that Nickolas's entire testimony was an admissible prior consistent statement under § 908.01(4)(a)2. Some of Nickolas's prior testimony was consistent with his trial testimony, some of it was inconsistent, and some of it covered material that Nickolas did not address during the trial. Moreover, prior consistent statements are admissible only when offered to rebut an express or implied claim of recent fabrication or improper influence or motive. See State v. Peters, 166 Wis. 2d 168, 176, 479 N.W.2d 198 (Ct. App. 1991). There was no such claim in this case.

¶ 26. Similarly, the entire prior testimony cannot be admitted under the rule of completeness. The rule of completeness requires that a statement be admitted in its entirety " 'when this is necessary to explain the admitted portion, to place it in context, or to avoid misleading the trier of fact, or to ensure a fair and impartial understanding of the admitted portion.'" State v. Sharp, 180 Wis. 2d 640, 653-54, 511 N.W.2d 316 (Ct. App. 1993) (citation omitted). There is no indication that admitting Nickolas's entire prior testimony somehow satisfies this standard. See United States v. Wright, 826 F.2d 938, 946 (10th Cir. 1987) ("It would be puerile to suggest that if any part of a statement is [to] be admitted the entire statement must be admitted."). The State needed to show how portions of the statement that have been admitted would tend to mislead the jury if additional portions of the statement were not admitted. Sharp, 180 Wis. 2d at 653. The State failed to do so.

¶ 27. Accordingly, we conclude that the trial court erroneously exercised its discretion in allowing the entire prior testimony in without first determining whether the proper standards had been met.

¶ 28. We also conclude that the admission of the prior testimony, which was read dramatically to the jury, constituted reversible error. In essence, the jury heard Nickolas's testimony multiple times: once through Nickolas's live testimony, and twice more, through the dramatic reading of the prior testimony.

D. Multiplicity.

¶ 29. Finally, Meehan argues that the two charges against him were multiplicitous. He claims that his conviction of both counts violates double jeopardy. We disagree.

¶ 30. In order to determine whether two charges are multiplicitous, we apply a two-step test. State v. Bergeron, 162 Wis. 2d 521, 534, 470 N.W.2d 322 (Ct. App. 1991). First, we must address whether or not the two charges are identical in law and in fact; second, we must consider whether the legislative intent was to allow the prosecution under the statute in question. Id. Our review is de novo. Id.

¶ 31. The two charges at issue are clearly not identical in law. One is second-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(2), and the other is attempted second-degree sexual assault of a child, contrary to Wis. Stat. §§ 948.02(2) and 939.32. The elements of the two charges are different. However, Meehan contends that the conduct he was convicted of was identical in fact because it was one continuous act, rather than separate acts.

¶ 32. In Harrell v. State, 88 Wis. 2d 546, 277 N.W.2d 462 (Ct. App. 1979), we addressed "whether an episode of sexually assaultive behavior constitutes a single offense or multiple offenses." Id. at 572. In making such determination, we consider the nature of the act, the time interval between acts, the place of the acts, intent, the effect of cumulative punishment, muscular contraction, and the number of victims. Id. at 572-74.

¶ 33. The acts involved in this case took place in the same place and involved the same victim. However, the remaining factors support a finding that the two acts were separate offenses. Nickolas testified that when Meehan put his hand on Nickolas's penis, Nickolas pushed his hand away and said "no." Then Meehan asked, "[w]hat's the matter. Do you think somebody will come in and find us?" Nickolas said "no." Nickolas stated that Meehan tried to grab him again but, because Nickolas pushed his hand away, Meehan did not succeed.

¶ 34. The nature of the two acts was different because the attempted sexual assault was foiled by the victim's resistance. There was some time separation between the two acts, sufficient for a question and answer. Further, Meehan had an opportunity to reconsider his course of action because Nickolas told him "no" after the first act. See State v. Carol M.D., 198 Wis. 2d 162, 170, 542 N.W.2d 476 (Ct. App. 1995) ("Offenses are separated in time if the defendant had time to reconsider his . . . course of action between each offense."). Accordingly, we conclude that the two acts were not identical in fact.

¶ 35. In addressing whether the legislature intended separate punishments for the two counts, we are guided by our analysis in Bergeron:

Where a statute intends to protect multiple and varied interests of the victim and the public, multiple punishments are appropriate. Moreover, where the evidence shows the defendant committed separate volitional acts, it is appropriate to punish the defendant separately for each offense. In a sexual assault involving multiple offenses, there are multiple denigrations of the victim's integrity and multiple threats to the victim's safety. Thus, we conclude that the legislature intended to allow separate punishments for each offense legitimately charged under sec. 940.225(2)(a), Stats.

Bergeron, 162 Wis. 2d at 535-36 (citations omitted). Because we have concluded that the two acts were separate acts, we must conclude that each was legitimately charged and, therefore, the legislature intended separate punishments. See State v. Grayson, 172 Wis. 2d 156, 160, 493 N.W.2d 23 (1992). Therefore, we reject Meehan's contention that the charges in this case were multiplicitous.

By the Court. — Judgment reversed; order affirmed in part and reversed in part.

       All references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted.

       In this case, the term "dramatic reading" was used to denote the practice of having an individual play the role of the witness, actually sit in the witness chair, and read the witness's answers with some inflection. It was an option elected, over defense objection, in lieu of a plain reading, where one counsel simply reads to the jury both the questions and answers from a prior proceeding. Here, an assistant district attorney played the role of Nickolas during the dramatic reading.

      Wisconsin Stat. § 904.04(2) provides:
      Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

       The full text of that portion of the cross-examination follows:
      Q And did he ever discuss with you the facts of his prior case in '92?
      A No.
      Q When did that come to your attention?
      A After he was arrested.

        Q So that was the first you heard of it?
      A Yes.
      Q And '92 would have been before you knew him?
      A Yes.
      Q So who first told you after the defendant's arrest about this '92 prior sexual assault case?
      A I think a detective.
      Q And so you've discussed it with [Meehan]?
      A Yes.
      Q And asked him why he never told you about this?
      A Yes.
      Q And you weren't aware in the three and-a-half years that you've known him that he had a probation officer to report to?
      A I was aware.
      Q But you thought it was for some other matter?
      A Yes.
      Q And that's because [Meehan] told you that it was for something different?
      A Yes.
      Q What did [Meehan] tell you?
      A Drugs.
      Q You now know that not to be true, correct?
      A Yes.
      Q So he didn't tell you the truth about that, did he?
      A No.
      Q And so when you spoke to him about . . . this, then did he admit to you that it was actually a sexual assault?
      A Yes.
      Q And did he tell you that he went into the home of a stranger and assaulted a sleeping man?
      A I don't remember the exact things.

        Were you aware that the victim in that case was another male? <y

      Yes. <:
      Did he ... tell you that? O’
      Yes. <j
      And did he tell you the man was someone he didn't even know?
      I'm not sure. I don't remember. <!
      Q Did he tell you that the maii was asleep and awakened to [Meehan] in his bedroom —

        :

      Q — rubbing on his penis? a?

        :

      Q Mr. Holmes, did [Meehan] tell you that what happened in that case was that a man woke up in the middle of the night to find a stranger, your friend . . . Meehan, in his bedroom rubbing on his penis? &

      A I don't remember the exact things he said. I don't remember. >

      Q What did [Meehan] tell you he did that resulted in him being convicted of a sexual assault? £>

      A I was just aware that it involved some guy. I was never really informed of the exact details.
      Q And you must have asked him — £>
      A No. >

      Q This must have come as sordewhat of a shock to you that when you thought your lover was on probation only for drugs and then found out it was a sexual assault, correct? £>

      A Yes. <!
      Q Well, you must have asked him, Mr. Holmes — <y

      A Yes. <j
      Q — about what happened? <y

      A (Witness nods head.) <j
      Q And what did he say happened? <y

        He said it involved some guy and he was doing it just for drugs and that's as far as it went. <£

      And you've never seen the police reports or anything of that nature on that case? <y

      A No.
      Q And so you're not aware of anything more about it except what [Meehan] told you? or
      A Yes. <

       In support of his argument on this issue, Meehan's counsel cited State v. Gibson, No. 96-1448, unpublished slip op. (Wis. Ct. App. April 9, 1997); 210 Wis. 2d 498, 568 N.W.2d 321 (Ct. App. 1997). We caution counsel that non-published cases are not to be cited as authority. See Wis. Stat. § 809.23(3).

       Meehan also claims that the trial court erred when it dismissed Juror Dietz based on the non-verbal body movements and facial expressions made during the testimony of Meehan's father. Meehan asserts that removing Dietz violated his Sixth Amendment right to a fair and impartial jury, his right to fundamental fairness under the due process clause, and his statutory right to have any extra jurors removed by random lot at the close of the case pursuant to Wis. Stat. § 972.10.

        Juror Dietz had caught the attention of the prosecutor a few days into the trial because, she advised the trial court, when she objected to certain testimony as irrelevant, Juror Dietz said, "Yes, it is." The trial court conducted voir dire of Juror Dietz, who could not remember the incident, although he admitted that he may have been so caught up in the testimony as to have uttered the statement. The State moved to remove Juror Dietz at that point, but the trial court denied the motion because it was not satisfied that Juror Dietz had actually uttered the statement. Neither the trial court nor the court reporter heard it.
      Just before the submission of the case to the jury, the State again moved to remove Juror Dietz from the jury. The basis for the motion was testimony from a police detective, who alleged that Dietz was nodding his head in agreement during the alibi testimony of Meehan's father, and that when the trial court sustained an objection by the prosecutor, Juror Dietz grinned. The trial court granted the State's motion to strike Juror Dietz, ruling:
      ... I saw [the nodding]. And... I've never seen anything like it in my years on the bench, the nature of the animation, the open animation during the direct of the father.
      And it was so extreme that I have to — I'm willing to impune [sic] to that... he probably is biased, and I'm going to grant the state's motion that he be stricken and we'll simply call his name out . along with the other alternate ....
      A criminal defendant is guaranteed the right to trial by an impartial jury. Hammill v. State, 89 Wis. 2d 404, 407, 278 N.W.2d 821 (1979). Prospective jurors are presumed impartial, and the challenger to this presumption bears the burden of proving bias. Irvin v. Dowd, 366 U.S. 717, 723 (1961). Juror bias may be actual or implied. State v. Wyss, 124 Wis. 2d 681, 730, 370 N.W.2d 745 (1985). Whether a prospective juror is biased and should be dismissed for cause is a matter left to the trial court's discretion. State v. Louis, 156 Wis. 2d 470, 478, 457 N.W.2d 484 (1990).
      What happened in this case disturbs this court. Without any voir dire, the trial court struck a juror based on nonverbal reaction during a witness's testimony. The dismissal was based on observations of the juror's demeanor during the trial by a police detective, the prosecutor, and the trial court. We strongly discourage trial courts from striking jurors for cause based on nonverbal expressions made throughout the course of the trial without conducting a proper voir dire to determine if the juror is unable to be impartial. We need not directly decide this issue, however, because our decision on the other issues disposes of this appeal. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (we decide cases on the narrowest possible grounds).


source: Caselaw Access Project

author: BROWN, P.J.

license: Public Domain

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

      Nos. 00-1532-CR, 00-1533-CR.

      Submitted on briefs March 9, 2001.

    Decided April 18, 2001.

    2001 WI App 111
    (Also reported in 629 N.W.2d 77.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Anthony A. Parker, pro se.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P. J., Nettesheim and Anderson, JJ.
   BROWN, P.J.

¶ 1. Anthony A. Parker appeals pro se from an order denying his motion for postconviction relief. Parker argues that his transfer to an out-of-state prison is a breach of his plea agreement or,- alternatively, is a new factor meriting sentence modification. By our count, this is Parker's fourth attempt at sentence modification; his second effort with this court. He has not prevailed before, nor does he now.

¶ 2. On March 26,1992, Parker pled no contest to a charge of first-degree reckless injury as a repeater and to the crime of escape. The reckless injury charge had been reduced from a charge of attempted first-degree intentional homicide as a result of plea negotiations. Parker was sentenced to maximum consecutive sentences, a total of twenty-one years. In its determination, the sentencing court put great weight on Parker's violent act of spraying lighter fluid on a woman and igniting it, the extensive and permanent harm to the victim resulting from her burns, and the public's need for protection from Parker, who had committed other violent acts.

¶ 3. As a preliminary matter, we note the plethora of case law that has been generated by inmates challenging the authority of the State of Wisconsin to transfer them to out-of-state prison facilities, all to no avail. Courts have found no merit in claims that such transfers: infringe any federal or state liberty interest, Evers v. Sullivan, 2000 WI App 144, ¶ 18, 237 Wis. 2d 759, 615 N.W.2d 680, review denied, 2000 WI 121, 239 Wis. 2d 312, 619 N.W.2d 94 (Wis. Oct. 17, 2000) (No. 00-0127); violate the Thirteenth Amendment's proscription against involuntary servitude, Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir.), cert. denied, 528 U.S. 954 (1999); or violate federal equal protection rights, Lambert v. Sullivan, 35 F. Supp. 2d 1131, 1133 n.2 (E.D. Wis. 1999). None of these cases, however, address whether transfer to a prison outside of Wisconsin is a breach of a plea agreement or new factor warranting sentence modification. We now address these claims in order.

¶ 4. When the facts relating to the plea agreement are undisputed, a question of law is presented which we review de novo. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 642, 579 N.W.2d 698 (1998).

¶ 5. Parker posits that at the time he entered his plea, the law authorized transfers to Minnesota only if the prisoner consented. Because he did not consent, he had a reasonable expectation to serve his entire sentence within the State of Wisconsin. Parker further suggests that because he was sentenced prior to the adoption of Wis. Stat. §§ 301.21(1m) and (2m) (1999-2000), and the trial court was not aware of the law at sentencing, his transfer pursuant to the statute is a breach of his plea agreement.

¶ 6. Parker's argument fails on both points. At the time of his sentencing, Wis. Stat. .§ 301.21 (1991 — 1992) permitted the Department of Corrections to contract with Minnesota to transfer Wisconsin prisoners to that state for confinement. Parker offers no authority for his contention that this law applied only to inmates who consented to transfer. On its face, § 301.21 contained no such limiting or restrictive language. Moreover, in Evers, we explicitly rejected this argument when considering the constitutionality of the most recent version of this statute. "Had the legislature wished to restrict the department's authority to implement the contracts authorized under § 301.21, or to limit its authority to the transfer of'volunteers' only, it could easily have said so . . . ." Evers, 2000 WI App 144 at ¶ 10. Therefore, we determine that at the time of sentencing, the applicable law did not provide Parker with any reason to believe he would spend his entire sentence in Wisconsin.

¶ 7. More to the point, however, in order to prevail on a claim of breach of a plea agreement, Parker cannot rely on whatever his "reasonable expectations" might have been at sentencing. Instead, he must show the violation of a specific prosecutorial promise that induced his plea. See State v. Bond, 139 Wis. 2d 179, 187-88, 407 N.W.2d 277 (Ct. App. 1987). In this case, Parker must show that during plea negotiations the prosecutor promised Parker he would serve his sentence in Wisconsin. Here, there is no proof whatsoever that the prosecutor or court promised Parker he would serve his sentence in Wisconsin. Therefore, we conclude that Parker has failed to prove by clear and convincing evidence that a material and substantial breach of the agreement occurred. State ex rel. Warren, 219 Wis. 2d at 643.

¶ 8. In addition, we agree with the State that transfer to an out-of-state prison is a collateral consequence of Parker's plea of no contest. Trial courts may not accept a guilty or no contest plea unless they are satisfied that the plea is knowing and voluntary. State v. James, 176 Wis. 2d 230, 238, 500 N.W.2d 345 (Ct. App. 1993). Those entering guilty pleas must have sufficient awareness of the relevant circumstances and likely consequences that follow. Id. This requirement is satisfied when the defendant is informed of direct consequences of the plea; knowledge of collateral consequences is not required. Id. A direct consequence is one that definitely, immediately and largely automatically flows from the conviction. See State v. Myers, 199 Wis. 2d 391, 394, 544 N.W.2d 609 (Ct. App. 1996). If a consequence might or might not occur in a given case, and is the result of a separate decision-making process, it is collateral. Id. at 394-95.

¶ 9. We have held that collateral consequences include deportation, restitution, subsequent filing of a sexually violent person petition, habitual offender penalties and the consequences of revocation of probation. James, 176 Wis. 2d at 238-39; Myers, 199 Wis. 2d at 394-95. We now determine that transfer to an out-of-state prison facility, which might or might not occur at the discretion of the Department of Corrections, is a collateral consequence of conviction. Therefore, Parker needed no knowledge of the prison transfer law in order to make his plea knowing and voluntary.

¶ 10. We now address Parker's claim that his transfer to a Minnesota prison constitutes a new factor warranting sentence modification. A new factor is a fact or set of facts highly relevant to the imposition of sentence but not known to the trial court at the time of sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties. State v. Kluck, 210 Wis. 2d 1, 7, 563 N.W.2d 468 (1997). To justify sentence modification, the new factor must operate to frustrate the purpose of the sentencing court's original intent. State v. Michels, 150 Wis. 2d 94, 97, 441 N.W.2d 278 (Ct. App. 1989). Whether a set of facts or circumstances is a new factor is a question of law we review independently. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).

¶ 11. Parker contends that his transfer out of state is a new factor that frustrates the purpose of his sentence because his placement no longer coincides with the judgment of conviction confining him to "Wisconsin state prisons." Parker's reliance upon these words is excessively literal and finds no support in the case law. In Evers, we held that such language simply identifies the initial place of imprisonment for those who are imprisoned for more than one year. Evers, 2000 WI App 144 at ¶ 12. It creates neither a right of inmates to remain in Wisconsin institutions nor a restriction on the authority of the department to place inmates outside of Wisconsin when appropriate. Id.; see also Lambert, 35 F. Supp. 2d at 1132. Consequently, Parker's transfer to a Minnesota prison does not violate his judgment of conviction.

¶ 12. Moreover, in reviewing the sentencing transcript, there is no indication that serving a portion of his term in a Minnesota prison, as opposed to a Wisconsin one, somehow frustrates the original intent of the trial court's sentence. Indeed, the transcript makes clear that the court was primarily concerned about protecting the public from the violent conduct demonstrated by Parker in the case before it and his criminal history. The sentence was based on the gravity of the offense, the need for protection of the public, and Parker's need for reform. Accordingly, we reject his claim.

¶ 13. In conclusion, we hold that the transfer of Parker to a prison in Minnesota is not a breach of his plea agreement or a new factor meriting sentence modification. The order of the trial court is affirmed.

By the Court. — Order affirmed.

       At the time of the commission of this crime, Parker had walked away from a prerelease center where he was serving time for aggravated assault with a baseball bat.

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

       1997 Wis. Act 27 expanded the authority of the Department of Corrections to contract for the transfer and confinement of Wisconsin inmates at public and private facilities in all other states. Neither the 1991-1992 version nor the current version of WlS. STAT. § 301.21 limits transfers of inmates to those who consent.

       Nor could a prosecutor or court bind the Department of Corrections by such a promise.


author: ANDERSON, J.

text:
    Courtyard Condominium Association, Inc., Plaintiff-Appellant, v. Barbara Draper, Respondent-Respondent.
    Court of Appeals

      No. 00-1817.

      Submitted on briefs February 9, 2001.

    Decided April 18, 2001.

    2001 WI App 115
    (Also reported in 629 N.W.2d 38.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Edward F. Thompson of Clair Law Offices, S.C., Delavan.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Charles D. Larson of Seymour, Kremer, Nommensen, Morrissy & Koch, L.L.P., Elkhorn.
    Before Nettesheim, Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. Courtyard Condominium Association, Inc. (Courtyard) appeals the decision of the circuit court quashing a court commissioner's order requiring Lewis F. Draper to submit to a supplementary examination under WlS. Stat. § 816.03 (1999-2000). Courtyard insists that the statute should be read to permit a judgment creditor to examine the spouse of a judgment debtor about the amount and location of marital property that might be available to satisfy a judgment. We agree with Courtyard that a commonsense reading, which harmonizes the statutes involved, requires the spouse of a judgment debtor to submit to a supplementary examination. Therefore, we reverse and remand this cause to the circuit court.

¶ 2. Courtyard obtained a judgment of $52,315 against Barbara Draper, individually. In an effort to execute on the judgment, Courtyard conducted a supplementary examination of Barbara under the provisions ofWlS. Stat. ch. 816. During the supplementary proceeding, Barbara professed a lack of knowledge concerning marital property she held with her husband Lewis. Courtyard applied, under Wis. Stat. § 816.03(1)(b), to a Walworth county court commissioner for an order requiring Lewis to submit to a supplementary examination. Lewis sought relief from the order, arguing that the statute limited supplementary examinations to the judgment debtor; the court commissioner denied him the relief requested.

¶ 3. Lewis then requested the circuit court to quash the order requiring him to submit to a supplemental examination. Lewis argued that there was no provision in Wis. Stat. ch. 816 that permitted the examination of third parties. Courtyard countered that the interplay between Wisconsin's marital property law, WlS. Stat. ch. 766, and the law providing supplementary remedies, ch. 816, permitted supplementary examinations of the spouse of the judgment debtor. The circuit court granted Lewis relief from the order. The circuit court concluded that ch. 816 limited supplementary examinations to the judgment debtor. Courtyard appeals.

¶ 4. Courtyard contends that since under WlS. Stat. § 766.55 marital property assets held by either the incurring or non-incurring spouse are available for satisfaction of family purpose obligations, WlS. STAT. § 816.03, should be interpreted to allow examination of either or both spouses, even if one spouse was not a party in the action. Lewis counters that despite the fact that § 766.55 makes the nonjudgment debtor spouse's interest in marital property available to satisfy a judgment, § 816.03 limits a supplementary examination to the judgment debtor.

¶ 5. The interrelationship of Wis. Stat. §§ 766.55 and 816.03 and whether the spouse of a judgment debtor can be subjected to a supplementary examination under § 816.03 are questions of statutory interpretation. The interpretation of a statute is a question of law which this court reviews without deference to the trial court. Johnson v. ABC Ins. Co., 193 Wis. 2d 35, 43, 532 N.W.2d 130 (1995).

¶ 6. Any effort at statutory construction must begin with the plain language of the statute itself. City of Racine v. Waste Facility Siting Bd., 216 Wis. 2d 616, 621, 575 N.W.2d 712 (1998). If the statute is unambiguous on its face, generally we do not look further. Id. However, a statute whose meaning appears clear on its face may be made ambiguous by its interaction with another statute or statutes. State v. White, 97 Wis. 2d 193, 198, 295 N.W.2d 346 (1980). The interpretation of the interaction between two or more statutes also presents a question of statutory interpretation, which we review de novo. See Little Sissabagama Lake Shore Owners Ass'n, Inc. v. Town of Edgewater, 208 Wis. 2d 259, 264, 559 N.W.2d 914 (Ct. App. 1997).

¶ 7. There are several statutes at play in this appeal. First, Wis. Stat. § 816.03(1) provides the authority for conducting supplementary examinations:

816.03 Debtor may be compelled to answer as to property. (1) (a) When an execution against property has, within 5 years, been returned unsatisfied in whole or in part or the officer holding the execution certifies that the officer is unable to levy upon property sufficient to satisfy the judgment or the judgment creditor by affidavit satisfies the court or judge that the judgment debtor, whether an individual, firm, corporation or other association, has property which the judgment debtor unlawfully refuses to apply towards the satisfaction of the judgment, the court or a judge of the county to which the execution was issued shall, upon motion of the judgment creditor, order such judgment debtor, whether an individual, firm, corporation or other association, to appear before the court or judge and answer concerning the judgment debtor's property at a time and place specified in the order, within said county.
(b) A court commissioner upon application of a judgment creditor shall order any judgment debtor to appear before the court commissioner and answer concerning the judgment debtor's property at a time and place specified in the order, within said county, in lieu of the procedure set forth in par. (a).

¶ 8. Second, Wis. Stat. § 816.06 provides who may be examined at a supplementary examination:

816.06 Examination of debtor and witnesses.
At the hearing upon such order or warrant such judgment debtor may be examined on oath and testimony on the part of either party may be offered.

¶ 9. Read together, the two statutes unambiguously require the judgment debtor to submit to a supplementary examination to determine if there is property available to satisfy the judgment. However, the last phrase of Wis. Stat. § 816.06, "testimony on the part of either party may be offered," creates an ambiguity. A reasonable person is required to ask whether this phrase is limited to allowing both parties to examine the judgment debtor or broadly permits the calling and examination of third parties who might have information about the judgment debtor's property. State v. Wittrock, 119 Wis. 2d 664, 669-70, 350 N.W.2d 647 (1984) (a statute is ambiguous if a well-informed person can become confused as to a term's meaning).

¶ 10. This ambiguity is heightened when provisions of the Marital Property Act (MPA) and a procedural statute are also considered. Specifically, Wis. Stat. § 766.55 addresses the satisfaction of obligations incurred by one spouse during the marriage. The applicable portions of this statute provide:

766.55 Obligations of spouses. (1) An obligation incurred by a spouse during marriage, including one attributable to an act or omission during marriage, is presumed to be incurred in the interest of the marriage or the family....
(2) After the determination date all of the following apply:
(b) An obligation incurred by a spouse in the interest of the marriage or the family may be satisfied only from all marital property and all other property of the incurring spouse.

This section of the MPA "does not create a direct cause of action against" the judgment debtor's spouse; rather, it serves to clarify what property is available to satisfy the judgment. St. Mary's Hosp. Med. Ctr. v. Brady, 186 Wis. 2d 100, 112-13, 519 N.W.2d 706 (Ct. App. 1994).

¶ 11. The judgment creditor's right to proceed to collect a judgment from the spouse of the judgment debtor is found in Wis. Stat. § 803.045(3), "[a]fter obtaining a judgment, a creditor may proceed against either or both spouses to reach marital property available, for satisfaction of the judgment." Read together, Wis. Stat. §§ 766.55(2) and 803.045(3) permit the judgment creditor to proceed against all marital property to satisfy a judgment on an obligation incurred during marriage, even where only one spouse is the judgment debtor.

¶ 12. The ambiguity identified by the interaction of Wis. Stat. §§ 816.03 with 816.06 is heightened because, although Wis. Stat. §§ 766.55(2)(b) and 803.045(3) permit a judgment creditor to proceed against the spouse who is not. the judgment debtor, whether or not the judgment creditor can seek to learn the amount and location of marital property in a supplementary examination of the spouse is unclear. These statutes provide two different schemes — (1) the right of the judgment creditor to inquire about the amount and location of property that could satisfy the judgment and (2) the right of the judgment creditor to proceed against all marital property and the nonjudgment debtor spouse to satisfy the judgment — that must be combined.

¶ 13. "It is our duty to construe statutes on the same subject matter in a manner that harmonizes them in order to give each full force and effect." State v. Aaron D., 214 Wis. 2d 56, 66, 571 N.W.2d 399 (Ct. App. 1997) (citation omitted). In one manner or another, all four statutes under consideration deal with satisfaction of a judgment. Wisconsin Stat. § 766.55 describes when marital property is available to satisfy a judgment and Wis. Stat. § 803.045 provides the procedure to reach that marital property. Wisconsin Stat. §§ 816.03 and 816.06 provide the procedure to locate the marital property that can be applied to the satisfaction of a judgment.

¶ 14. Lewis argues that while a judgment creditor can satisfy a judgment from marital property, he or she cannot examine the spouse of the judgment debtor to determine the amount and location of the marital property. We reject Lewis's argument because it defies common sense. See State v. Clausen, 105 Wis. 2d 231, 246, 313 N.W.2d 819 (1982) (statutes cannot be construed in derogation of common sense). As the United States Supreme Court observed in Bell v. United States, 349 U.S. 81, 83 (1955), statutes should be read "with the saving grace of common sense."

¶ 15. We conclude that the only way to harmonize the statutes under consideration and remove any ambiguity is to hold that a judgment creditor may examine the spouse of a judgment debtor under WlS. Stat. § 816.03. Where, as in this case, the judgment debtor pleads ignorance when asked about marital property during a supplementary examination, the right of the judgment creditor to satisfy a judgment from marital property would be frustrated if the creditor could not examine the spouse. Without examining the spouse of the judgment debtor, the judgment creditor would lack the information needed to proceed against the spouse under Wis. Stat. § 803.045 to reach marital property.

¶ 16. The supplementary examination of the spouse of the judgment debtor, when the judgment creditor seeks to satisfy the judgment from marital property, finds support in Keith A. Christiansen et al., Marital Property Law in Wisconsin § 622(a) (2d ed. 1993), which explains in relevant part:

Sections 811.001 and 812.01(1) provide that attachment and garnishment actions, respectively, may affect property held by the judgment debtor or both the debtor and the debtor's spouse if an obligation under § 766.55(2) is involved. However, § 816.03, relating to supplementary proceedings, was not modified. This may result in some confusion in determining permissible procedures relating to discovery of assets available for recovery of a judgment entered in connection with a § 766.55 obligation. For example, § 816.03(l)(a) merely provides that the "judgment debtor" can be ordered to appear at a supplementary examination to answer questions concerning his or her property. The incurring spouse may be the only defendant in the principal action, or the nonincurring spouse may be the only defendant if the creditor is unable to obtain personal jurisdiction over the obligated or incurring spouse. Since marital property assets held by the either the [sic] incurring or nonincurring spouse are available for satisfaction of family purpose obligations, § 816.03 should be interpreted to allow examination of either or both spouses, even if one spouse was not a party in the action. (Citations omitted.)

¶ 17. Permitting the supplementary examina- , tion of the judgment debtor's spouse also fosters the obligation of an attorney to conduct a reasonable inquiry to satisfy himself or herself that the action is well-grounded in fact before filing an action in court. Wis. Stat. § 802.05. The purpose of § 802.05 is to impose sanctions upon an attorney who files documents with the court without conducting an adequate investigation of the issues. Belich v. Szymaszek, 224 Wis. 2d 419, 430, 592 N.W.2d 254 (Ct. App. 1999), review denied, 225 Wis. 2d 489, 594 N.W.2d 383 (Wis. Apr. 27, 1999) (No. 97-3447). To perform an adequate investigation before proceeding with a claim, the attorney is expected to read and consider before litigating. Id. The supplementary examination of the judgment debtor's spouse will limit actions under WlS. STAT. § 803.045 to those where the attorney learns that there is marital property which can be reached to satisfy the judgment.

¶ 18. It would be an unreasonable and absurd result to conclude that although a judgment creditor may reach all marital property to satisfy a judgment, the spouse of the judgment debtor does not have to submit to a supplementary examination in which the amount and location of marital property could be determined. See Tesker v. Town of Saukville, 208 Wis. 2d 600, 612, 561 N.W.2d 338 (Ct. App. 1997) ("Courts must look to the common-sense meaning of a statute to avoid unreasonable and absurd results."). Harmonizing the statutes involved to permit the supplementary examination of the judgment debtor's spouse gives full force and affect to the tenor of the statutes allowing the judgment creditor to reach marital property.

By the Court. — Order reversed and cause remanded.

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

       We affirmed the judgment in Courtyard Condominium Association, Inc. v. Draper, No. 00-0459, unpublished slip op. (Wis. Ct. App. Jan. 31, 2001).


author: DYKMAN, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Michael Johnson, Defendant-Appellant.

    Court of Appeals

      No. 00-0645-CR.

      Submitted on briefs November 7, 2000.

    Decided April 19, 2001.

    2001 WI App 105
    (Also reported in 628 N.W.2d 431.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of David R. Karpe of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Christopher G. Wren, assistant attorney general.
    Before Dykman, P.J., Deininger and Leineweber, JJ.

      Petition to review denied.

       Circuit Judge Edward E. Leineweber is sitting by special assignment pursuant to the Judicial Exchange Program.

   DYKMAN, P.J.

¶ 1. Michael Johnson appeals from a judgment convicting him of possession of cocaine and possession of cocaine with intent to deliver. He also appeals from an order denying his postconviction motion to set aside the jury's verdict and vacate the judgment. He argues that a conviction on both charges violated the double jeopardy clauses of the state and federal constitutions. He also argues that there was insufficient evidence to support the jury verdict. We conclude that the evidence supported the verdict and that Johnson is judicially estopped from making his postconviction double jeopardy arguments. We therefore affirm.

I. Background

¶ 2. On June 13, 1997, police executed a search warrant for two neighboring apartments. Officer Bart O'Shea entered one of the apartments behind two other officers, one of whom set off a diversionary device commonly referred to as a "flash bang." The device emits a bright flash and a loud bang and is intended to stun the subjects of a residential search.

¶ 3. O'Shea found three people, including Johnson, in the bathroom of the apartment. O'Shea also found a clear plastic baggie in the toilet. Inside the baggie were two additional baggies, each containing ten rocks of cocaine base, or crack cocaine. O'Shea found another baggie on the floor between the toilet and the bathtub. That baggie also contained additional baggies with individual rocks of crack inside. The baggies from the toilet and the floor contained a total of twenty-five rocks of crack.

¶ 4. Detective John Halford searched Johnson's person and found an additional five rocks of separately packaged crack cocaine in Johnson's pants pocket. All of the cocaine was similar in appearance and packaging.

¶ 5. The State charged Johnson with two counts of possession of cocaine with intent to deliver in violation of Wis. Stat. § 961.41(1m)(cm)1 (1995-96). One charge referred to the cocaine in Johnson's pocket, and the other charge referred to the cocaine in the bathroom. The state amended the information to charge Johnson as party to a crime on both counts pursuant to Wis. Stat. § 939.05.

¶ 6. The case went to trial, and the jury determined that Johnson was guilty of possession with intent to deliver, party to a crime, for the cocaine in the bathroom. As to the cocaine in Johnson’s pocket, the jury determined that Johnson was guilty of the lesser-included offense of possession.

¶ 7. Johnson moved for postconviction relief, arguing, among other things, that conviction on both counts violated double jeopardy prohibitions. Rejecting Johnson's double jeopardy arguments, the trial court denied the motion. Johnson appeals.

II. Analysis

A Judicial Estoppel

¶ 8. On appeal, Johnson repeats his argument that his two convictions violate both the state and federal constitutional prohibitions against double jeopardy. While the State responds to Johnson's double jeopardy arguments, it also asserts that we should apply judicial estoppel and decline to review Johnson's double jeopardy claim. We agree with the State that Johnson is judicially estopped from prevailing on his double jeopardy arguments.

¶ 9. The doctrine of judicial estoppel is not directed at the relationship between the parties, but is intended to protect the judiciary as an institution from the perversion of its machinery. State v. Petty, 201 Wis. 2d 337, 346, 548 N.W.2d 817 (1996). Judicial estoppel is an equitable doctrine intended to prevent a litigant from "playing fast and loose with the courts." Id. at 347. When an appellate court invokes judicial estoppel, a decision on the elements and considerations involved presents a question of law for our independent determination. See id.

¶ 10. Although judicial estoppel is not easily reduced to a pat formula, there are identifiable boundaries. Petty, 201 Wis. 2d at 348. First, the defendant's later position must be "clearly inconsistent" with the earlier position. Id. Second, the facts at issue should be the same in both cases. Id. Finally, the party to be estopped must have convinced the first court to adopt its position. Id. Thus, although we permit a party to argue inconsistent positions in the alternative, "once it has sold one to the court it cannot turn around and repudiate it in order to have a second victory." Id. at 350 n.6. Instances in which a defendant in a criminal case reverses positions on appeal most often fit these parameters since the facts are the same and it is easier to discern whether the positions are clearly inconsistent. Harrison v. LIRC, 187 Wis. 2d 491, 497, 523 N.W.2d 138 (Ct. App. 1994).

¶ 11. At trial, Johnson's attorney argued during his opening statement:

We have two charges here. We have two charges of possession with intent to deliver, and just so I can keep them separate in my mind, we have the first charge there is — I'm going to call that the pocket cocaine. Okay. If I can just focus on that for a moment. That is what the evidence is going to show, that there was pocket cocaine that Mike had when he was arrested, and Michael clearly will say, the testimony will show, heck, yeah, that was mine.
You bet, that was mine. It was wrong, and I was smoking it, but it was — it was mine, no argument there.
We hope the testimony will also show that he had no interest in selling it. It was mine for personal use, and that's where you'll see that testimony evolving today. Yup, it's mine, but I wasn't going to sell it. That's the first count.
The second count is the bathroom cocaine.. ..
Please, please, as we all tend to do as the day wears on, we tend to get even like actually lazy. We may end up trying to maybe blend the charges together. Please don't. Pocket cocaine, toilet cocaine, bathroom cocaine. Please keep them differently. Please keep them separate. As you hear the testimony come out, you will notice it's important that we keep the two separate.

¶ 12. Upon direct examination, Johnson testified as follows:

Q What else had you planned on doing that night, Mike?
A I had planned on getting high, myself.
Q In fact, did not you have — what did you have on your person that was found that night?
A I had five bags of cocaine in my pocket.
Q And that was cocaine you were going to ingest that evening?
A That's right.

Johnson explained that he was in the living room of the apartment when he heard a bang. He thought it was shooting, so he went down the hallway with his girlfriend, at which time a man he did not know "ran into my girlfriend and in turn we all fell in the bathroom." Johnson further explained that he fell between the tub and the toilet, and as he was trying to get up, a police officer came in pointing a gun at him. Johnson's attorney then asked: "It's — your testimony is you know nothing about the drugs in the bathroom?" Johnson responded: "No, I don't."

¶ 13. On cross-examination, Johnson repeated much of his testimony, noting that earlier that day, he had purchased the five rocks of cocaine in Chicago for personal use. He reiterated that he "knew nothing about the crack cocaine in the toilet, on the floor, nowhere but [w]hat was in my pocket."

¶ 14. At closing argument, Johnson's attorney argued:

I would submit that to Count 1, as we talked about many, many hours ago, the pocket cocaine, Michael told you yeah, it was mine; yeah, I brought [sic] it down in Chicago, I brought it up here. You have to return a verdict of guilty of possession because that's what Mike did, and he told you that. Mike also told you that he wasn't trying to sell the cocaine in the pocket.
The second charge, and that's in the bathroom, as I asked Mike, who put the drugs there; I don't know. I don't know. We would ask that you return a verdict of not guilty to not only possession with intent to deliver, but to possession.

¶ 15. Johnson's position throughout trial was that he admitted possessing the cocaine in his pockets only for personal use, and that he disavowed any knowledge or relationship to the cocaine the police found in the bathroom. This position is clearly inconsistent with the arguments he makes on appeal in support of his double jeopardy claim. In his brief, Johnson argues that he was "obviously trying to get rid of all of his cocaine once he figured out the apartment was being raided, and he just did not succeed in getting it all out of his pocket." He also argues that:

[I]t defies the imagination to suppose that while the police were barging into [the] apartment in the aftermath of the flash-bang explosion, their weapons out and pointing, that [he] thought he would have an opportunity to separate out a bit of cocaine to continue possessing while leaving some behind in the toilet.

¶ 16. Because the two proceedings we compare here are a trial and the appeal from it, there is no question that they involve the same facts and factual issues. The final question thus becomes whether it can be said that Johnson convinced the court, and in this case the jury, of a position he now seeks to repudiate in order to secure a second victory.

¶ 17. State v. McCready, 2000 WI App 68, 234 Wis. 2d 110, 608 N.W.2d 762, review denied, 2000 WI 36, 234 Wis. 2d 179, 612 N.W.2d 734, illustrates that victory below need not mean that the defendant has gone free. It is enough that the defendant achieves what he or she sought in the first proceeding. In McCready, the defendant moved to terminate his probation. Id. at ¶ 2. The trial court granted the motion and sentenced the defendant to five years in prison. Id. On appeal, the defendant argued that the trial court did not have the authority to terminate his probation. Id. at ¶ 3. We rejected the defendant's argument on the merits, but began our decision by noting that his case "beg[ged] for application of judicial estoppel." Id. at ¶ 1.

¶ 18. In Johnson's case, it was the State's decision to proceed with two separate charges. However, Johnson could have moved to dismiss one of the charges as multiplicitous. Instead he chose to take advantage of the separate charges in an attempt to limit his total criminal exposure. He requested that the lesser-included offense of possession be submitted to the jury for the cocaine in his pocket.

¶ 19. Johnson was victorious to the extent that he convinced the jury that he possessed the cocaine in his pocket without intent to deliver it. Unfortunately for Johnson and his trial strategy, it appears that the jury did not also believe that he knew nothing about the cocaine in the bathroom. But because the jury was partially convinced of Johnson's position on the facts, he cannot now enjoy a "second victory" by reversing that position on appeal in order to assert a double jeopardy violation.

¶20. Johnson contends that the policy behind judicial estoppel does not apply to his case because he raised his double jeopardy claim with the trial court in a postconviction motion. Therefore, he argues, the trial court had an opportunity to rule on the merits of the double jeopardy issue, and "there was no procedural advantage to the judicial system in having it raised before conviction."

¶ 21. Johnson misconstrues the purpose of judicial estoppel. It is not a doctrine based primarily on judicial economy, nor is it based on the trial court's superior ability to make certain types of determinations. Instead, judicial estoppel focuses on protecting the judiciary from the "perversion of judicial machinery." Petty, 201 Wis. 2d at 346. Johnson did not make his double jeopardy argument until after he was convicted. At that point, the proceedings below, and his resulting partial victory, were complete for purposes of judicial estoppel. His opportunity to benefit further by arguing the reverse of his position at trial was the same whether he made that argument to the trial court or this court. In sum, we conclude that Johnson is judicially estopped from arguing that the two convictions violated double jeopardy prohibitions.

B. Sufficiency of the Evidence

¶ 22. Johnson also argues that the evidence was insufficient to support the jury's finding that he had the intent to deliver the cocaine the police found in the bathroom. We disagree.

¶ 23. We will not reverse a conviction for insufficiency of the evidence "unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990).

¶ 24. Detective Halford testified that he had arrested over one hundred people for trafficking in crack cocaine and that he was familiar with the customs and habits of those who engage in cocaine trafficking. Halford testified that the cocaine found in the bathroom was packaged in a way that was consistent with crack dealing. He also explained that possession of twenty rocks of crack was consistent with intent to deliver and that possession of even five rocks could indicate more than personal use. Finally, Halford testified that he recovered a pager from Johnson, and that possession of a pager is consistent with drug trafficking. We have previously held that a pager and numerous separately wrapped baggies of crack both constitute evidence that supports intent to sell. See State v. Dye, 215 Wis. 2d 281, 294, 572 N.W.2d 524 (Ct. App. 1997).

¶ 25. Johnson argues that the jury necessarily rejected Halford's testimony when it determined that Johnson was guilty only of possession for the five rocks of crack in his pocket. While the jury may have rejected Halford's testimony that possession of five rocks indicates trafficking, it does not follow that the jury necessarily rejected the rest of Halford's testimony. This testimony is evidence upon which the jury reasonably could have based a determination that Johnson intended to sell the cocaine found in the bathroom.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted. Johnson's charges were also subject to a penalty enhancer under Wis. Stat. § 961.49.

       The trial transcript shows that the parties eventually agreed to submission of the lesser-included offense, but Johnson's Request for Jury Instructions shows that he asked for the lesser-included offense instruction. The State's Request for Jury Instructions expressly indicated that it did not want an instruction on the lesser-included offense.


text:
    State of Wisconsin ex rel. Tony D. Walker, Petitioner-Appellant, v. Gary R. McCaughtry, Warden, Waupun Correctional Institution, Respondent-Respondent.
    Court of Appeals

      No. 00-1439.

      Submitted on briefs November 7, 2000.

    Decided April 19, 2001.

    2001 WI App 110
    (Also reported in 629 N.W.2d 17.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Tony D. Walker, pro se.
    . On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Jaime Preciado, assistant attorney general.
    Before Dykman, P.J., Roggensack, and Mason, JJ.

       Circuit Judge James E. Mason is sitting by special assignment pursuant to the Judicial Exchange Program.

   DYKMAN, P.J.

¶ 1. Tony D. Walker appeals from an order denying his motion that the circuit court reconsider its decision dismissing his petition for certi-orari review of a prison disciplinary committee decision. The circuit court found that Walker had failed to comply with the forty-five-day filing deadline for seeking review of a governmental decision by a writ of certiorari. See Wis. STAT. § 893.735(2) (1997 — 98). Because the facts of record concerning Walker's petition for a writ of certiorari are insufficient to permit us to determine its timeliness, we reverse and remand for fact-finding.

I. Background

¶ 2. Walker is an inmate at the Green Bay Correctional Institution, but this appeal arises from incidents occurring while he was incarcerated at the Waupun Correctional Institution. On February 23, 1999, a prison disciplinary adjustment committee found Walker guilty of violating an administrative code provision governing prisoner conduct. Walker appealed the adjustment committee's findings to the warden, who affirmed the committee on March 3,1999. Walker then appealed to the Institution Complaint Examiner (ICE) on March 9, 1999. On March 29, 1999, the ICE recommended dismissal, and the warden again affirmed the decision.

¶ 3. Walker requested further review from the Corrections Complaint Examiner (CCE) in a document dated March 30,1999. The CCE recommended dismissal of Walker's complaint and the secretary of the Department of Corrections (DOC) adopted that recommendation. The secretary's final decision was dated June 3, 1999, but there is no evidence as to when Walker received the decision. At this point, Walker had exhausted all of his appeals within the corrections system.

¶ 4. On July 1, 1999, the circuit court received Walker's petition for a writ of certiorari, petition for fee waiver and affidavit of indigency, and authorization to withhold money from his trust account, as evidenced by the clerk's date stamp. Walker asserts he sent these documents on June 23,1999.

¶ 5. Walker further asserts that on July 21,1999, the circuit court returned these documents to him, stating that they were incomplete because he needed to submit a Department of Justice (DOJ) certification, a six-month statement of his trust account, and proof of exhaustion of remedies. In his motion to reconsider, Walker stated that on August 6,1999, he returned the documents, alleging that everything was originally there except the DOJ certification, which he enclosed. He also implied that the prison had earlier sent the trust account statement. He did not say when he requested the DOJ certification, which is dated July 12,1999.

¶ 6. On August 16, 1999, the circuit court again received Walker's documents, including the DOJ certification. All of these were stamped as received, except for the petition for waiver of fees and affidavit of indi-gency, which shows only the July 1, 1999 stamp. On September 20, 1999, the court received Walker's trust account statement.

¶ 7. On August 31, 1999, the clerk of this court directed that Walker pay this court $4.07 by October 1, 1999. Walker asserts that on September 29, 1999, the circuit court issued an order that if he did not pay that same amount to the clerk of circuit court within thirty days, it would dismiss his case. In a November 22,1999 memorandum to the circuit court, Walker explained he was unable to pay the $4.07 because it had been sent to this court. This memorandum was accompanied by another trust account statement through October 22, 1999, showing a balance of zero.

¶ 8. On December 8, 1999, the clerk of circuit court filed Walker's writ and corresponding documents along with an order waiving fees. On February 29, 2000, the warden filed a motion to dismiss Walker's petition because he had not filed within the statutorily mandated forty-five days. On March 8, 2000, the court dismissed Walker's petition because it was not filed within forty-five days of his cause of action's accrual.

¶ 9. On March 17,2000, Walker moved for reconsideration. The circuit court denied the motion on April 19, 2000, explaining that the date used to determine whether forty-five days has passed is the date the petition is filed, not the date it is received. Walker appeals.

II. Analysis

¶ 10. A prisoner seeking review of a governmental decision by writ of certiorari must commence such action within forty-five days after the cause of action accrues. Wis. Stat. § 893.735(2). The cause of action accrues on the date of decision unless the prisoner proves he or she received notice of the decision at a later date. Id. For Walker, the date of decision was June 3, 1999.

¶ 11. Absent evidence of record as to when Walker received the decision, we will assume that he received it on June 3, 1999. Therefore, excluding June 3 as the first day pursuant to Wis. Stat. § 990.001(4)(a), June 4, 1999, becomes day one and Sunday, July 18, 1999, is day forty-five. However, pursuant to § 990.001(4)(b), when the last day within which an act is to be done falls on a Sunday the act may be done on the next secular day, which is Monday, July 19, 1999. We must consider whether Walker timely filed his petition by interpreting Wis. Stat. §§ 893.735(2), 814.29(1m), and 801.02(7)(c) and (d). The interpretation and application of statutes present questions of law that we review de novo. State ex rel. Steldt v. McCaughtry, 2000 WI App 176, ¶ 11, 238 Wis. 2d 393, 617 N.W.2d 201.

¶ 12. A prisoner seeking waiver of fees in a certi-orari action must submit several documents to the court before the forty-five-day filing deadline is tolled. State ex rel. Locklear v. Schwarz, 2001 WI App 74, ¶ 22, 242 Wis. 2d 327, 629 N.W.2d 30. Those documents include a petition for a writ of certiorari, a request for a fee waiver and affidavit of indigency, a certified copy of the prisoner's trust account statement, and authorization for the prison to make any appropriate payments toward the filing fees from the prisoner's accounts. Id.; see also Wis. Stat. § 814.29(1m). Additionally, pursuant to Wis. Stat. §§ 801.02(7)(d) and 802.05(3)(b), the prisoner must submit a DOJ certification stating that the prisoner has not brought a frivolous or otherwise improper action or appeal on three or more prior occasions. Locklear, 2001 WI App 74 at ¶ 22. Finally, the prisoner must include proof of exhaustion of administrative remedies. Wis. Stat. § 801.02(7)(c). The absence of any one of these documents can lead to a rejection of the petition. Locklear, 2001 WI App 74 at ¶ 22.

¶ 13. We have concluded that the time a court takes to determine a fee waiver tolls the time for filing the documents because the time taken by the court to make this determination is out of the prisoner's control. Steldt, 2000 WI App 176 at ¶ 17. Consequently, "[i]f the court orders that the prisoner be allowed to proceed without prepayment of the fees, then the certi-orari action should be considered filed on the date of that order." Id. at ¶ 18.

¶ 14. Similarly, "when a prison inmate places a certiorari petition in the institution's mailbox for forwarding to the circuit court, the forty-five-day time limit in Wis. Stat. § 893.735(2) is tolled." State ex rel. Shimkus v. Sondalle, 2000 WI App 238, ¶ 14, 239 Wis. 2d 327, 620 N.W.2d 409 (Shimkus I). The time is also tolled while a prisoner waits for the DO J to provide him or her with the required documentation. Locklear, 2001 WI App 74 at ¶ 32.

¶ 15. In Locklear, Shimkus I, and Steldt, we relied on the United States Supreme Court's reasoning in Houston v. Lack, 487 U.S. 266, 271 (1988):

Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped "filed" or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation.... Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay.

¶ 16. We now apply that same reasoning to a prisoner's trust account statement. The prisoner loses control over that document the moment he or she requests it. Here, it appears that the DOC processed the request and forwarded Walker's trust account statement to the court. It would be inequitable to penalize Walker for the DOC's delay in providing the court with this required documentation. Therefore, we toll the statute of limitations from the date Walker requested the trust account statement to the date the court received it.

¶ 17. We also note an important caveat to these tolling rules. This case, unlike Locklear, Shimkus I, and Steldt, involves two untimely filed documents over which the prisoner had no control. The rationale behind tolling a statute of limitations is to create an equitable solution for prisoners seeking to comply with the forty-five-day deadline. This rationale requires that prisoners comply with the deadline to the extent they have control over the relevant documents. This is the same standard applied to other litigants.

¶ 18. Unlike other litigants, prisoners have to submit documents not within their control. However, this does not permit a prisoner to serially toll the forty-five-day period by requesting one document, and after receiving that document, requesting the next, tolling the time further. This would give an advantage to prisoners over other litigants, contrary to legislative intent. Therefore, the tolling begins when the documents over which prisoners have control have been mailed, and all of the documents over which prisoners have no control have been requested. The time begins running again when those documents are within the prisoner's control, such as when a prisoner receives a DOJ certification for forwarding to the court. See Locklear, 2001 WI App 74 at ¶ 28, ¶ 32. By requiring prisoners to submit documents under their control within a designated period, the prisoner is treated equitably and the legislative intent is fulfilled.

¶ 19. We must determine the date when Walker submitted all of the documents in his control to the court and had made both a request for the DOJ certification and a request to the DOC for a trust account statement.

¶ 20. The court received the documents over which Walker had control on July 1, 1999: the petition for fee waiver and affidavit of indigency, the authorization to withhold payments, the petition for a writ of certiorari, and the documentary proof of exhaustion of administrative remedies. Therefore, on July 1, 1999, day twenty-eight of Walker's forty-five-day time limit, what remained for Walker to do was request a certification from the DOJ and a trust account statement from the DOC. Unfortunately the record is unclear as to when he made these requests.

¶ 21. The DOJ certification was stamped by the circuit court as received on Monday, August 16, 1999, day 74. The circuit court received the trust account statement on Monday, September 20, 1999, day 109. The clerk of circuit court did not file the petition until December 8, 1999, day 188, presumably because of a delay in determining the filing fee.

¶ 22. To decide whether the time taken to determine the filing fee is tolled, we must apply Steldt, 2000 WI App 176 at ¶ 17. That rule is based upon an assumption that the time taken by the court to decide whether the prisoner must pay any fees is out of the prisoner's control. Id. The situation before us, where two courts required the payment of the same balance in Walker's trust account, is one over which Walker had no control. Therefore, the forty-five-day limit was tolled while Walker attempted to resolve that problem.

¶ 23. The absence of relevant facts of record precludes us from determining the amount of time taken by Walker to resolve the two-court dispute, what was required of him to do so, and consequently whether or not he delayed the filing. In order to continue our analysis, we assume that the delay was reasonable, therefore tolling the time between September 20,1999, and December 8,1999.

¶ 24. For the time prior to September 20, 1999, we must apply the trust account tolling rule. In order to do so, we need to know the date Walker requested a statement of his trust account. We only have two pieces of information regarding this date. The first is Walker's assertion in his motion to reconsider that the prison sent the statement along with his original petition. The other is the September 17,1999 date on which the trust account statement was printed. These dates lead to two reasonable inferences, each of which would dispose of this case, but differently. The first is that DOC received the request on or about June 23, 1999, as is implied in Walker's motion to reconsider. In that case, it is the DOC's failure to return the statement in a timely fashion that caused Walker to miss the filing deadline. However, there is a second inference, that Walker neglected to request the trust account statement until the middle of September 1999, and the DOC promptly sent it to the court. In that case, Walker missed the filing deadline due to his own dilatory conduct.

¶ 25. The record is also unclear as to when Walker requested or received the DOJ certification. Those dates could range from the date the certification was signed, July 12, 1999, to August 15, 1999, the day before the circuit court received it.

¶ 26. As we noted in Steldt, 2000 WI App 176 at ¶ 19, our interpretation of Wis. Stat. §§ 893.735, 814.29(1m), and 59.40(3) requires the clerk of courts, the prison, or the prisoner to record the various dates that will toll or restart the forty-five-day time limit. The clerk of courts received Walker's petition for a writ of certiorari within forty-five days of the accrual of his cause of action. However, there is no evidence of record concerning other crucial dates. The dates of record are insufficient for us to decide with certainty whether Walker filed a timely petition. See State ex rel. Shimkus v. Sondalle, 2000 WI App 262, ¶ 15, 240 Wis. 2d 310, 622 N.W.2d 763 (Shimkus II). Therefore, we reverse and remand for further fact-finding consistent with this opinion.

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

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted. Wisconsin Stat. § 893.735(2) provides:
      An action seeking a remedy available by certiorari made on behalf of a prisoner is barred unless commenced within 45 days after the cause of action accrues. The 45-day period shall begin on the date of the decision or disposition, except that the court may extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition. Subject to no contact requirements of a court or the department of corrections, a prisoner in administrative confinement, program segregation or adjustment segregation may communicate by 1st class mail, in accordance with department of corrections' rules or with written policies of the custodian of the prisoner, with a 3rd party outside the institution regarding the action or special proceeding.

       Wisconsin Stat. § 990.001(4)(a) states:
      The time within which an act is to he done or proceeding had or taken shall he computed by excluding the first day and including the last; and when any such time is expressed in hours the whole of Sunday and of any legal holiday, from midnight to midnight, shall be excluded.

       Wisconsin Stat. § 990.001(4)(b) states:
      If the last day within which an act is to he done or proceeding had or taken falls on a Sunday or legal holiday the act may be done or the proceeding had or taken on the next secular day.

       Wisconsin Stat. § 814.29(1m) states in part:
      (b) If a prisoner makes a request for leave to commence or defend an action, special proceeding, writ of error or appeal without being required to prepay the fees or costs or without being required to give security for costs, the prisoner shall submit all of the following:
      1. The affidavit required under sub. (1) (b).
      2. A certified copy of the trust fund account statement for the prisoner for the 6-month period immediately preceding the filing of the request for leave to commence or defend an action, special proceeding, writ of error or appeal, or for the period that the prisoner was incarcerated, imprisoned or detained, if that period is less than 6 months. The trust fund account statement must be obtained from the appropriate official at each facility in which the prisoner is or was incarcerated, imprisoned, confined or detained. "Trust fund account statement" includes accounts accessible to the prisoner before-or upon release.
      Wisconsin Stat. § 801.02(7) states in part:
      (c) At the time of filing the initial pleading to commence an action or special proceeding, including a petition for a common law writ of certiorari, related to prison or jail conditions, a prisoner shall include, as part of the initial pleading, documentation showing that he or she has exhausted all available administrative remedies. The documentation shall include copies of all of the written materials that he or she provided to the administrative agency as part of the administrative proceeding and all of the written materials the administrative agency provided to him or her related to that administrative proceeding. The documentation shall also include all written materials included as part of any administrative appeal. The court shall deny a prisoner's request to proceed without the prepayment of fees and costs under s. 814.29 (lm) if the prisoner fails to comply with this paragraph or if the prisoner has failed to exhaust all available administrative remedies.
      (d) If the prisoner seeks leave to proceed without giving security for costs or without the payment of any service or fee under s. 814.29, the court shall dismiss any action or special proceeding, including a petition for a common law writ of certiorari, corn-menced by any prisoner if that prisoner has, on 3 or more prior occasions, while he or she was incarcerated, imprisoned, confined or detained in a jail or prison, brought an appeal, writ of error, action or special proceeding, including a petition for a common law writ of certiorari, that was dismissed by a state or federal court for any of the reasons listed in s. 802.05 (3) (b) 1. to 4. The court may permit a prisoner to commence the action or special proceeding, notwithstanding this paragraph, if the court determines that the prisoner is in imminent danger of serious physical injury.

       The documentary proof of exhaustion of administrative remedies was contained within the petition for writ of certiorari itself, which may have contributed to the court's initial determination that such documentation was not present when the court returned the petition as insufficient on July 21,1999.

      Wisconsin Stat. § 59.40(3)(a) states:
      The clerk of the circuit court shall collect the fees that are prescribed in ss. 814.60 to 814.63. The clerk may refuse to accept any paper for filing or recording until the fee prescribed in subch. II of ch. 814 or any applicable statute is paid.