source: Caselaw Access Project

author: HOOVER, EJ.

license: Public Domain

text:
    John J. Pemper, Plaintiff-Appellant, v. John J. Hoel, American Family Insurance Group, Partners Mutual Insurance and Security Health Plan, Defendants, Milwaukee Mutual Insurance Company, Defendant-Respondent.
    Court of Appeals

      No. 03-2134.

      Submitted on briefs January 27, 2004.

    Decided February 24, 2004.

    2004 WI App 67
    (Also reported in 677 N.W.2d 705.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Matthew S. Mayer, Mark A. Sauer, and Mallery & Zimmerman, S.C. of Wausau.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Susan R. Tyndall and CMT Legal Group, Ltd. of Waukesha.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 5-17-04.

   HOOVER, EJ.

¶ 1. John Pemper appeals a summary judgment concluding that John Hoel is not an insured under a policy Milwaukee Mutual Insurance Company issued. Because the circuit court correctly interpreted the policy, we affirm the judgment.

Background

¶ 2. On June 22, 2000, Hoel was driving a vehicle owned by Richard LaMarche, d/b/a Quality Truck & Auto. Hoel, apparently a customer of LaMarche, collided with a vehicle operated by Pemper and injured him. When Pemper filed suit for damages, he named Milwaukee Mutual Insurance Company as a defendant because Milwaukee Mutual had issued a policy to LaMarche, insuring the vehicle Hoel had used.

¶ 3. Milwaukee Mutual denied coverage for Hoel, contending he did not meet the applicable definition of an insured under the policy and moved for summary judgment to dismiss it from the case. The circuit court examined the policy and its endorsements, concluded that Hoel was not covered by Milwaukee Mutual's policy, and granted the company's motion. Pemper appeals, arguing that the policy is ambiguous and Milwaukee Mutual's construction of its policy violates Wis. Stat. § 632.32(5).

Discussion

¶ 4. We review summary judgments de novo, using the same methodology as the circuit court. Mullen v. Walczak, 2003 WI 75, ¶ 11, 262 Wis. 2d 708, 664 N.W.2d 76. Summary judgment is appropriate if the pleadings and other information on file show there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2).

¶ 5. Interpretation of an insurance policy is a question of law that we review de novo. Mullen, 262 Wis. 2d 708, ¶ 12. An insurance policy is construed to give effect to the parties' intent as expressed by the policy language and interpreted as a reasonable person in the position of the insured would understand it. Id. A policy that is clear and unambiguous on its face should not be rewritten by interpretation to bind an insurer to a risk it never contemplated and for which it was never paid. Id.

¶ 6. Milwaukee Mutual issued a garage coverage policy to LaMarche. The main section of the policy defines an insured as the policyholder and "Anyone else while using with your permission a covered 'auto There is no dispute that the vehicle in this case was covered. There are certain exceptions to the definition of an insured under the main policy, but Hoel does not fall under any of these exceptions.

¶ 7. There is, however, a "Wisconsin Changes" endorsement to the policy, which says:

WHO IS AN INSURED is changed to include anyone other than an officer, agent or employee of such business while using a covered "auto". However, that person is an "insured" only if he or she has no other valid and collectible insurance with at least the applicable minimum limit specified by WIS. STAT. Section 344.15. (Emphasis added.)

Pemper contends that the word "include" creates an ambiguity because it suggests the addition of a class of insured beyond those named in the primary policy. We disagree.

¶ 8. We conclude that Pemper's construction of the endorsement as adding, not replacing, a class of insured is at odds with the intended meaning of six key endorsement phrases. The endorsement is entitled "Wisconsin Changes" (Emphasis added.) Below this title, in an italicized font larger than the subsequent typeface, is a heading that reads, "This endorsement changes the policy. Please read it carefully." (Emphasis added.) The very next line under this heading reads, "For a covered 'auto' licensed or principally garaged in... Wisconsin, the coverage form is changed as follows:" (Emphasis added.) Then, the endorsement says, "This endorsement modifies insurance coverage provided under" the garage coverage form. (Emphasis added.) The line following the list of modified forms says, "the provisions of the Coverage Form apply unless modified by the endorsement." (Emphasis added.) Finally, the applicable provision of the endorsement goes on to say "WHO IS AN INSURED is changed . :. ." (Emphasis added.)

¶ 9. While we acknowledge that adding a class of insured could constitute a "change," viewing the endorsement as a whole we conclude that a reasonable insured would understand that the endorsement's definition of an insured is designed to supplant the main policy's definition. The effect of this portion of the endorsement is to define an insured as anyone — other than an officer, agent or employee — who is using a covered auto. However, this large class of insureds would expose the insurer to a substantial risk it is not required to assume. Thus, Wis. Stat. § 632.32(5)(c) allows the insurance company to restrict the scope of this broad coverage:

If the policy is issued to a motor vehicle handler, it may restrict coverage afforded to anyone other than the motor vehicle handler or its officers, agents or employees to the limits under s. 344.01 (2) (d) and to instances when there is no other valid and collectible insurance with at least those limits whether the other insurance is primary, excess or contingent.

Milwaukee Mutual therefore constricted the broad group of insureds to individuals with "no other valid and collectible insurance with at least the applicable minimum limit specified by WIS.. STAT. Section 344.15." There is no dispute that Hoel has his own valid and collectible insurance issued by American Family Insurance Group. Hoel is therefore not insured by Milwaukee Mutual's policy to LaMarche.

¶ 10. Pemper argues that under Carrell v. Wolken, 173 Wis. 2d 426, 496 N.W.2d 651 (Ct. App. 1992), Milwaukee Mutual failed to take advantage of this statutory exemption. Statutory interpretation is a question of law that we review de novo. Fox v. Catholic Knights Ins. Soc., 2003 WI 87, ¶ 19, 263 Wis. 2d 207, 665 N.W.2d 181. Again, we disagree with Pemper.

¶ 11. Carrell discussed inclusion of language necessary to take advantage of Wis. Stat. § 632.32(5)(c) because the insurance policy in question contained no restrictive language whatsoever. Carrell, 173 Wis. 2d at 436. We concluded that § 632.32(5) contains permissive, discretionary phrases that "may" be included in policies, compared to § 632.32(3) phrases that "shall" be included. Id. Because § 632.32(5) clauses "may" be included, they must be written into a policy to apply. Otherwise, § 632.32(5) may not be relied upon later to automatically create exclusions when a question of coverage arises. See id. at 435.

¶ 12. Pemper's argument appears to be premised on the contention that the endorsement adds to, rather than defines, the class of insureds because he argues that the endorsement's exclusionary language fails to acknowledge who meets the definition of an insured under the main policy. We might be persuaded if the definitions of the primary policy were relevant. However, the endorsement redefines who is an insured for Wisconsin policies. Because the limiting clause immediately follows the definition of an insured, we conclude that the exclusion adequately references and therefore restricts the definition of an insured. Under the Wisconsin Changes endorsement, an insured is anyone— other than an officer, agent or employee — using a covered auto and who does not have his or her own valid and collectible insurance.

¶ 13. Additionally, the language contained in Milwaukee Mutual's insurance policy endorsement contains almost verbatim the language Wis. Stat. § 632.32(5)(c) allows and refers to the correct statutory levels of coverage. We fail to see a deficiency in the language that would preclude applying the restriction. The limiting clause in the endorsement does not violate § 632.32(5)(c). Hoel is therefore not insured by Milwaukee Mutual.

By the Court. — Judgment affirmed.

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

       There is an exception for customers of an auto dealership. The circuit court concluded that Quality Truck was only a repair shop, not a dealership. Milwaukee Mutual disputes this because the shop apparently has four sets of dealer plates, but does not cross-appeal this ruling. See Wis. Stat. Rule § 809.10(2)(b) ("A respondent who seeks modification of the judgment or order appealed from... in the same action. . . shall file a notice of cross-appeal...."). However, because we affirm the holding excluding Hoel as an insured based on the endorsement, we need not consider Milwaukee Mutual's alternate argument regarding whether this dealership exception should apply. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need be addressed).

       Wisconsin Stat. §344.15 incorporates the limits of § 344.01(2)(d).


author: NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Peter R. Cash, Defendant-Appellant.

    Court of Appeals

      No. 03-1614-CR.

      Submitted on briefs February 4, 2004.

      Decided February 25, 2004.

    2004 WI App 63
    (Also reported in 677 N.W.2d 709.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Lynn M. Bureta, of Kenosha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and William C. Wolford, assistant attorney general.
    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review denied 5-17-04.

   NETTESHEIM, J.

¶ 1. Peter R. Cash appeals from a judgment of conviction for burglary contrary to Wis. Stat. § 943.10(l)(a) (2001-02), and an order denying his postconviction motion for plea withdrawal. Cash argues that his plea of no contest was premised upon an invalid plea agreement pursuant to State v. Hayes, 167 Wis. 2d 423, 425, 481 N.W.2d 699 (Ct. App. 1992), which prohibits a plea bargain that allows a judgment to be reopened and amended to recite a lesser conviction if the defendant successfully completed probation. Cash also claims that both of his trial counsel were ineffective on a variety of grounds. We reject Cash's arguments and affirm the judgment and postconviction order.

BACKGROUND

¶ 2. On April 13, 2001, the State filed a criminal complaint against Cash alleging one count of burglary as a repeater contrary to Wis. Stat. §§ 943.10(l)(a) and 939.62(2). The complaint alleged that Cash, a former employee at Quad/Tech, had entered the Quad/Tech facilities using his employee access card and had taken computer equipment without permission. The complaint cited statements made by Cash's brother, Jonathan, which implicated Cash in the burglary. Following a preliminary hearing, Cash was bound over for trial. The State then filed an Information alleging the same charge of burglary as a repeater.

¶ 3. Cash's original trial counsel, Daniel S. Grable, filed motions to suppress on a variety of grounds not germane to this appeal. The trial court held hearings on these motions on June 21, 2001, and July 24, 2001. The latter date was also the date for the scheduled jury trial. At the conclusion of the eviden-tiary hearing, the court issued an oral ruling denying in part and granting in part the motions to suppress. The case was set for jury trial that afternoon.

¶ 4. Following a recess, the parties advised the trial court that they had reached a plea agreement under which Cash would enter a no contest plea to the charge of burglary. In exchange, the State agreed to dismiss the repeater allegation and to concur in the sentencing recommendation to be made in the presen-tence report. In addition, the plea agreement included the following provision which lies at the heart of one of the appellate issues: if Cash returned a substantial portion of the stolen property in good working order prior to the sentencing, the State would ask the court to "reopen the judgment of conviction," request that the charge be reduced to felony theft, a Class E felony conviction, and recommend a sentence of one year in the county jail.

¶ 5. After conducting a thorough plea colloquy, the trial court accepted Cash's no contest plea to the burglary charge and dismissed the repeater allegation. Cash was released on a signature bond for a two-week period in order to secure the stolen items with the understanding that bail would be reviewed after the two-week period on August 9, 2001.

¶ 6. Cash did not appear at the August 9, 2001 hearing. As a result, the trial court revoked the signature bond and issued a capias for Cash's arrest. Cash was later apprehended and when he next appeared, Grable, his attorney, requested permission to withdraw. Although the court was prepared to proceed with sentencing, it granted Grable's request to withdraw and adjourned the sentencing hearing.

¶ 7. On October 22, 2001, Cash appeared before the trial court with new counsel, Charles K. Krombach, who moved for a plea withdrawal on grounds also not germane to this appeal. The court denied the motion, and the matter was once again adjourned for sentencing. On November 5, 2001, Cash was sentenced to eight years, consisting of four years of initial confinement followed by four years of extended supervision. The court entered a judgment of conviction on November 6, 2001.

¶ 8. On August 27, 2002, represented by yet another attorney, Cash filed a motion for postconviction relief on grounds of ineffective assistance of both prior counsel. The motion alleged that Grable, Cash's first counsel, was ineffective for (1) failing to challenge Cash's arrest for lack of probable cause and an arrest warrant, (2) failure to challenge his brother's separate arrest for lack of probable cause and arrest warrant, and (3) failure to contest the authority of the Waukesha County Sheriffs Department to arrest both himself and his brother in Milwaukee county without evidence of compliance with Wis. Stat. § 175.40(6) (d), governing arrest in a foreign jurisdiction. Cash also alleged that Krombach, his second counsel, was ineffective for: (1) falling to seek an adjournment at the October 22, 2001 hearing, and (2) failing to fully investigate Cash's case before filing a "bare-bones" motion for plea withdrawal and failing to file a new motion before sentencing.

¶ 9. On November 4, 2002, Cash filed a supplemental motion for postconviction relief on grounds that the plea agreement was invalid under Hayes because it called for the legal impossibility of reopening a judgment after conviction.

¶ 10. The trial court held a Machner hearing on Cash's postconviction motions on November 11, 2002, at which both Grable and Krombach testified. On January 9, 2003, following oral arguments, the court issued an oral decision denying Cash's motions. The trial court entered a written order reflecting its decision on January 20, 2003.

. ¶ 11. Cash appeals.

DISCUSSION

Validity of Plea Agreement

¶ 12. As noted, the plea agreement provided that if Cash returned a substantial portion of the stolen items in good condition before the sentencing, the State would ask the trial court to reopen the judgment and to amend the burglary charge to felony theft. Citing Hayes, Cash argues that the plea agreement was invalid because a trial court does not have the authority to reopen a judgment of conviction.

¶ 13. A defendant seeking to withdraw a guilty or no contest plea after sentencing bears "the heavy burden of establishing, by clear and convincing evidence, that withdrawal of the plea is necessary to correct a manifest injustice." State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997). A "manifest injustice" occurs when a defendant makes a plea involuntarily or without knowledge of the charge or potential punishment if convicted. See Wis. Stat. § 971.08(l)(a); State v. James, 176 Wis. 2d 230, 237, 500 N.W.2d 345 (Ct. App. 1993). "A plea which is not knowingly, voluntarily or intelligently entered is a manifest injustice." State v. Giebel, 198 Wis. 2d 207, 212, 541 N.W.2d 815 (Ct. App. 1995).

¶ 14. Cash argues that a plea based on a legal impossibility makes the plea an uninformed one, State v. Dibble, 2002 WI App 219, ¶ 5, 257 Wis. 2d 274, 650 N.W.2d 908, review denied, 2002 WI 121, 257 Wis. 2d 121, 653 N.W.2d 893 (Wis. Oct. 21, 2002) (No. 02-0538-CR), and that a plea must meet legal standards for it to be a valid plea, State v. Woods, 173 Wis. 2d 129, 140, 496 N.W.2d 144 (Ct. App. 1992).

¶ 15. Cash argues that Hayes renders his plea invalid. The plea agreement in Hayes provided, in part, that if Hayes successfully completed probation, the case would be reopened and he would be convicted of a misdemeanor. Hayes, 167 Wis. 2d at 425. The trial court rejected this provision, concluding that it lacked the power to reopen and amend the judgment. Id.

¶ 16. Upon appeal, the Hayes court framed the issue in terms of "the trial court's power to reopen a judgment after a successful probation." Id. In answering this question, the court focused on the language of Wis. Stat. § 973.09(1) (a) governing conditions of probation and concluded that the only reward for successful probation is discharge pursuant to § 973.09(5). Hayes, 167 Wis. 2d at 427. As a result, Hayes held that the judgment of conviction could not be amended and "the trial court lacked the power to impose probation in accordance with the reopening provision in the plea agreement." Id. at 427-28.

¶ 17. We hold that Hayes does not render the plea agreement invalid in this case. The agreement here provided that following his plea of no contest, Cash would have the opportunity prior to sentencing to procure and return the stolen items. If Cash was able to satisfy this contingency during this interval, the State would amend the charge to a lesser offense and the sentencing would proceed accordingly. Unlike the defendant in Hayes, Cash would not have served any portion of a sentence (probation or otherwise) prior to any potential amendment of charge and the imposition of sentence. Thus, the concerns of the Hayes court regarding the limitations of the probation statute and the trial court's lack of authority to amend a judgment after completion of a sentence are not implicated here.

¶ 18. We hold that the plea agreement was not invalid under Hayes. Therefore, the trial court correctly denied Cash's motion to withdraw his no contest plea.

Ineffective Assistance of Counsel

¶ 19. Cash argues that the trial court erred in denying his motion for plea withdrawal based on his claims of ineffective assistance of trial counsel. Cash contends that his first trial counsel, Grable, was ineffective for (1) failing to challenge Cash's arrest for lack of probable cause and an arrest warrant; (2) failing to challenge the use of information obtained from Cash's brother, Jonathan; and (3) failing to contest the authority of the Waukesha county sheriffs authorities to arrest Cash in Milwaukee county with evidence of the written policies mandated by Wis. Stat. § 175.40(6)(d). Cash alleges his second trial counsel, Krombach, was ineffective for failing to seek an adjournment of the plea withdrawal hearing on October 22, 2001, and failing to fully investigate the case prior to filing a "bare-bones" motion to withdraw the plea and not filing a new motion prior to sentencing.

¶ 20. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney's performance was deficient and that he was prejudiced as a result of his attorney's deficient conduct. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985). To prove deficient performance, the defendant must show specific acts or omissions of his attorney that fall "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. To show prejudice, the defendant must demonstrate that the result of the proceeding was unreliable. Id. at 687. If the defendant fails on either prong — deficient performance or prejudice — the ineffective assistance of counsel claim fails. Id. at 697. We strongly presume counsel has rendered adequate assistance. Id. at 690.

First Trial Counsel

¶ 21. Before we address Cash's challenges to the performance of his initial trial counsel, Grable, we recite the relevant facts. On April 9, 2001, Quad/Tech was burglarized by use of Cash's Quad/Tech employee pass card. Certain items of computer equipment were taken during the burglary. Waukesha County Sheriff Detective Robert Grail interviewed Cash, who stated that his pass card had been stolen in March 2000. However, a check with Quad/Tech established that Cash had continued to use the pass card after March 2000. Cash terminated his employment with Quad/Tech at the end of June 2000, but the pass card was used thereafter, on September 30, 2000, and on April 8 and 9, 2001. Grail found certain items for sale on Ebay, an internet auction site, which appeared to match certain items taken in the burglary. The seller of the items was identified as Jonathan, Cash's brother. In addition, Grail noticed some tires for sale on the Ebay site, which Grail believed to be the same tires he had seen in Cash's apartment when he interviewed Cash.

¶ 22. Based on this information, the Waukesha County Sheriffs Department obtained a search warrant for Cash's residence, which was located in Milwaukee county. When the Waukesha county authorities executed the search warrant, the Milwaukee county authorities were also in attendance. Upon arrival, the Waukesha county authorities first arrested Cash and then searched the premises. The following day they arrested Jonathan.

¶ 23. Cash first contends that Grable was ineffective for failing to register a probable cause challenge to his arrest. Cash makes two argues in support: (1) the information available to the police at the time of his arrest was insufficient to support probable cause, and (2) the police improperly used statements made by Jonathan after Cash's arrest to support probable cause for Cash's arrest.

¶ 24. At the Machner hearing, Grable testified that he did not raise any probable cause to Cash's arrest because he believed the arrest was supported by probable cause. The trial court agreed. Whether probable cause to arrest exists based on the facts of a given case is a question of law we review independently of the trial court. State v. Truax, 151 Wis. 2d 354, 360, 444 N.W.2d 432 (Ct. App. 1989). A police officer has probable cause to arrest when the totality of the circumstances within that officer's knowledge at the time of the arrest would lead a reasonable police officer to believe that the defendant probably committed a crime. State v. Koch, 175 Wis. 2d 684, 701, 499 N.W.2d 152 (1993). This is a practical test based on "considerations of everyday life on which reasonable and prudent [people], not legal technicians, act." State v. Drogsvold, 104 Wis. 2d 247, 254, 311 N.W.2d 243 (Ct. App. 1981) (citation omitted). The objective facts before the police officer need only lead to the conclusion that guilt is more than a possibility. State v. Richardson, 156 Wis. 2d 128, 148, 456 N.W.2d 830 (1990).

¶ 25. Our factual recital at the beginning of this discussion sets out the highly incriminating evidence against Cash known to the Waukesha county authorities prior to Cash's arrest. Based on that information, a reasonable officer would conclude that Cash's guilt was more than a possibility. See id. We conclude that Grable was not deficient in failing to challenge Cash's arrest for lack of probable cause.

¶ 26. Cash also argues that Grable was ineffective for failing to seek suppression of certain statements he made on the basis that his arrest in his home was accomplished without an arrest warrant. Cash argues that his arrest was unlawful pursuant to Payton v. New York, 445 U.S. 573, 590 (1980), which prohibits a warrantless arrest in the home. Payton, however, is not an ironclad rule. In United States v. Winchenbach, 197 F.3d 548 (1st Cir. 1999), the court held that where the police are lawfully on the suspect's premises by virtue of a valid search warrant, they may make a warrantless arrest of the suspect prior to the search if the arrest is supported by probable cause. Id. at 554. The court stated:

A search warrant represents a judicial determination that there is probable cause to invade the privacy of the suspect's home. The impartial determination that supports the issuance of a search warrant justifies a greater intrusion than that supporting the issuance of an arrest warrant. Thus, once an officer has procured a search warrant, the privacy interests that led to the imposition of an arrest warrant requirement in Payton have been protected.

Winchenbach, 197 F.3d at 553, (quoting from Jones v. City of Denver, 854 F.2d 1206, 1209 (10th Cir. 1988)). The Winchenbach court went on to explain that Payton, although addressing the validity of an arrest, was essentially grounded on the "physical integrity of the home." Winchenbach, 197 F.3d at 553 (citation omitted). The court concluded that this interest was sufficiently addressed and protected by the existence of a valid search warrant. Id. at 553-54.

¶ 27. We agree with Winchenbach and we adopt it for purposes of Wisconsin law. Here, the police were lawfully present on Cash's premises by virtue of a valid search warrant. And based on our earlier discussion, Cash's warrantless arrest in his home was supported by probable cause. We therefore reject Cash's assertion that Grable was ineffective for failing to challenge his warrantless arrest.

¶ 28. Finally, Cash contends that Grable was ineffective for failing to contest the authority of the Waukesha county detectives to execute the search warrant and to accomplish an arrest in the city of Milwaukee. Cash's argument is based on Wis. Stat. § 175.40(6), governing arrests and assistance, which provides:

(6) (a) A peace officer outside of his or her territorial jurisdiction may arrest a person or provide aid or assistance anywhere in the state if the criteria under subds. 1. to 3. are met:
1. The officer is on duty and on official business.
2. The officer is taking action that he or she would be authorized to take under the same circumstances in his or her territorial jurisdiction.
3. The officer is acting to respond to any of the following:
a. An emergency situation that poses a significant threat to life or of bodily harm.
b. Acts that the officer believes, on reasonable grounds, constitute a felony.
(d) In order to allow a peace officer to exercise authority under par. (a), the peace officer's supervisory agency must adopt and implement written policies regarding the arrest and other authority under this subsection, including at least a policy on notification to and cooperation with the law enforcement agency of another jurisdiction regarding arrests made and other actions taken in the other jurisdiction.

¶ 29. Cash concedes that the Milwaukee county authorities were present when the Waukesha county officers arrested him and searched his premises. However, he argues that Wis. Stat. § 175.40(6)(d) required the Waukesha County Sheriffs Department to adopt written policies covering the authority of its officers to arrest in another jurisdiction. Cash complains that the State did not establish the existence of such policies in this case, and therefore he reasons that the evidence obtained incident to his arrest would have been suppressed had Gable sought such relief.

¶ 30. Assuming arguendo that the Waukesha County Sheriffs Department had not adopted the written policies required by Wis. Stat. § 175.40(6)(d), we agree with the State that suppression is not a remedy for such a statutory transgression. "[WJrongfully or illegally obtained evidence is to he suppressed only where the evidence was obtained in violation of an individual's constitutional rights or in violation of a statute that expressly requires suppression as a sanction." State ex rel. Peckham v. Krenke, 229 Wis. 2d 778, 787, 601 N.W.2d 287 (Ct. App. 1999) (emphasis added). Wisconsin Stat. § 175.40 does not protect a constitutional right; nor does it recite suppression as a sanction for its violation. Therefore, we conclude that Cash was not prejudiced by counsel's failure to challenge his arrest on this ground.

Second Trial Counsel

¶ 31. We next turn to Cash's challenges to the performance of Krombach, his second trial counsel. Cash argues that Krombach was ineffective for failing to request an adjournment at the October 22, 2001 hearing on the motion to withdraw the plea and for failing to fully investigate the case. Cash reasons that had Krombach asked for an adjournment and more fully investigated, he would have unearthed the potential probable cause challenge and the Wis. Stat. § 175.40 challenge to his arrest.

¶ 32. However, we have already explained why such challenges would have lacked merit. As such, it follows that Cash was not prejudiced by Krombach's failure to pursue these matters. In order to satisfy the prejudice prong of an ineffective assistance of counsel claim, the defendant must show that counsel's errors were serious enough to render the resulting conviction unreliable. State v. Swinson, 2003 WI App 45, ¶ 58, 261 Wis. 2d 633, 660 N.W.2d 12, review denied, 2003 WI 126, 265 Wis. 2d 417, 668 N.W.2d 557 (Wis. July 9, 2003) (No. 02-0395-CR & No. 02-0396-CR).

CONCLUSION

¶ 33. We conclude that plea agreement was not invalid under Hayes. We further conclude that neither of Cash's trial counsel were ineffective. Nor has Cash demonstrated any prejudice as to any of his claims of ineffective assistance of counsel. We affirm the judgment and order denying Cash's motion for postconviction relief.

By the Court. — Judgment and order affirmed.

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

       The record reflects that Cash was apprehended after fleeing the country to New Zealand. On September 21,2001, the State filed an Information against Cash alleging bail jumping contrary to Wis. Stat. § 946.49(l)(b).

       An amended judgment of conviction was entered on December 11, 2001, to accurately reflect Cash's sentence credit of 138 days.

        State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

       The State makes a threshold argument that this issue is moot because Cash was not able to recover the stolen items. Thus, the State reasons that a resolution of this issue could not have any practical legal effect. See Milwaukee Police Ass'n v. City of Milwaukee, 92 Wis. 2d 175, 183, 285 N.W.2d 133 (1979). However, Cash's argument is that the plea agreement was void at its inception. As such, Cash responds that whether he was able to take advantage of the agreement is irrelevant. We agree with Cash. The issue is not moot.

       Unfortunately, State v. Hayes, 167 Wis. 2d 423, 481 N.W.2d 699 (Ct. App. 1992), does not present a detailed statement of the facts and therefore it is unclear as to exactly when the trial court rejected this provision of the plea agreement. We see three possibilities: (1) at the sentencing when the court ordered probation, (2) when the court entered the written judgment, or (3) when the defendant later made application to implement the provision after successfully completing probation.

       Thus, we accept Cash's contention that he was "convicted" following his plea within the meaning of State v. Wimmer, 152 Wis. 2d 654, 449 N.W.2d 621 (Ct. App. 1989); State v. Trudeau, 157 Wis. 2d 51, 458 N.W.2d 383 (Ct. App. 1990); and State v. Smet, 186 Wis. 2d 24, 519 N.W.2d 697 (Ct. App. 1994). However, both his plea and conviction during this interval were conditional under the terms of the plea agreement.

       Cash also argues that the police improperly relied upon Jonathan's postarrest statements to support Cash's arrest. This argument is a nonstarter given that Jonathan provided his statements after Cash's arrest.

       Cash makes no challenge to the search warrant.

       While we have already determined that his warrantless arrest was supported by probable cause, we note that Cash's statements were made outside of his residence and therefore, even if the arrest were deemed illegal, his statements would not have been suppressed as the result of a constitutional violation. See New York v. Harris, 495 U.S. 14, 21 (1990) (the exclusionary rule does not bar statements made outside the home even though statement was taken after an arrest made in the home in violation of Payton v. New York, 445 U.S. 573 (1980)).

       Cash made this same argument before the trial court but only as to his brother Jonathan's arrest. Therefore, the State argues that the issue is waived as to Cash's arrest. While the trial court record supports the State's waiver argument, we nevertheless address the merits of the issue in rejecting Cash's challenge. See State v. Caban, 210 Wis. 2d 597, 609, 563 N.W.2d 501 (1997) (an appellate court has the power in the exercise of its discretion to consider issues raised for the first time on appeal).


author: LUNDSTEN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Shawn A. Beasley, Defendant-Appellant.

    Court of Appeals

      No. 02-2229-CR.

      Submitted on briefs April 10, 2003.

    Decided February 26, 2004.

    2004 WI App 42
    (Also reported in 678 N.W.2d 600.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert T. Ruth of Ruth Law Office, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Warren D. Weinstein, assistant attorney general, and Peggy A. Lautenschlager, attorney general.

      Before Dykman, Vergeront and Lundsten, JJ.

       Petition to review denied 5-17-04.

   LUNDSTEN, J.

¶ 1. Shawn Beasley appeals a judgment of conviction and postconviction ruling of the circuit court. Beasley challenges two burglary charges, and his resulting convictions, on multiplicity grounds. We reject Beasley's arguments and affirm the judgment of conviction and postconviction ruling of the circuit court.

Background

¶ 2. Shawn Beasley and other men were charged with multiple serious crimes arising out of a home invasion and fatal shooting. Beasley was tried before a jury on seven charges. He was convicted on all counts, including the first-degree intentional homicide of Adrian Gonzalez.

¶ 3. Beasley's challenge on appeal involves only two of his convictions: Count 5, burglary with intent to steal while armed with a dangerous weapon, in violation of Wis. Stat. § 943.10(2)(a) (1997-98), and Count 6, burglary with intent to steal while committing a battery upon a person lawfully in the burglarized enclosure, in violation of § 943.10(2)(d). Beasley contends these charges and the corresponding convictions are multiplicitous. Beasley raised his multiplicity challenge for the first time during postconviction proceedings, and the circuit court rejected it. Beasley asks this court to vacate one of these convictions.

Discussion

¶ 4. Beasley presents a multiplicity challenge. He asserts he was twice charged with and convicted of the underlying crime of burglary with intent to steal, as that crime is defined in Wis. Stat. § 943.10(1). In Beasley's view, he was convicted of this crime once when he was convicted of Count 5, burglary with intent to steal while armed with a dangerous weapon (§ 943.10(2)(a)), and a second time when he was convicted of Count 6, burglary with intent to steal while committing a battery upon a person lawfully in the burglarized enclosure (§ 943.10(2)(d)). Beasley contends that the "while armed" element of Count 5 and the battery element of Count 6 are penalty enhancers that enhance the same Class C felony, burglary, to a Class B felony.

¶ 5. We reject Beasley's challenge for two reasons. First, the subsections of Wis. Stat. § 943.10(2) do not define penalty enhancers, they define distinct crimes. Second, Beasley has not met his burden of showing that the legislature did not intend to impose multiple punishments.

Standard of Review

¶ 6. We review double jeopardy and multiplicity challenges without deference to the circuit court. See State v. Multaler, 2002 WI 35, ¶ 52, 252 Wis. 2d 54, 643 N.W.2d 437; State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998).

Method for Reviewing Multiplicity Claims

¶ 7. In State v. Davison, 2003 WI 89, 263 Wis. 2d 145, 666 N.W.2d 1, the supreme court explained the "established methodology" for reviewing multiplicity claims:

First, the court determines whether the charged offenses are identical in law and fact using the Block-burger test. If it is determined, using this test, that the offenses are identical in law and fact, the presumption is that the legislative body did not intend to punish the same offense under two different statutes. "Accordingly, where two statutory provisions proscribe the 'same offense,' they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." (Emphasis added.)
Conversely, if under the Blockburger test the charged offenses are different in law or fact, a presumption arises that the legislature did intend to permit cumulative punishments. "This presumption can only be rebutted by clear legislative intent to the contrary."
Second, even if the charged offenses are not identical in law and fact, the court must still determine whether the legislature intended multiple offenses to be brought as a single count. At this juncture, however, it is the defendant's burden to show a clear legislative intent that cumulative punishments are not authorized.

Id., ¶¶ 43-45 (citations omitted).

¶ 8. The Blockburger test inquires whether "each provision requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). Stated differently, courts must "consider whether each of the offenses . . . requires proof of an element or fact that the other does not." State v. Derango, 2000 WI 89, ¶ 30, 236 Wis. 2d 721, 613 N.W.2d 833.

¶ 9. If, under Blockburger, charges are not identical in law and fact, there is no potential double jeopardy violation. See Davison, 263 Wis. 2d 145, ¶¶ 33, 46. Instead, when charges are not identical in law and fact, the remaining multiplicity question is whether there is a due process violation. A due process violation is present if "the legislature did not intend to authorize multiple convictions and cumulative punishments." Id., ¶ 46. The Davison court provides guidance for this particular type of legislative intent inquiry:

As we seek legislative intent in a multiplicity claim, the court does not stop at the language of the subsection. Instead, we analyze four factors to determine legislative intent: (1) all applicable statutory language; (2) the legislative history and context of the statute; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishment for the conduct.

Id., ¶ 50. The dissent in Davison points out that this analysis deviates from the "traditional rules for discerning legislative intent," which the dissent describes as follows: the "usual statement is that if a statute is ambiguous, the court examines the history, context, subject matter and object of the statute to discern legislative intent." Id., ¶¶ 117, 123 n.9 (Abrahamson, C.J., dissenting).

¶ 10. Thus, Davison sets forth the following analysis. If charged offenses are identical in law and fact using the Blockburger test, there is a presumption that the legislature did not intend multiple punishments. This presumption is only overcome by a clear indication of contrary legislative intent. On the other hand, if charged offenses are not identical in law and fact using the Blockburger test, there is no potential double jeopardy problem, but there may be a due process problem if the legislature did not intend to authorize cumulative punishments. In this second situation, there is a presumption that the legislature intended to permit cumulative punishments, and the defendant has the burden of overcoming this presumption by showing a clear legislative intent that cumulative punishments are not authorized. The defendant must meet that burden in light of four factors: (1) all applicable statutory language; (2) legislative history and context of the statute; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishment.

Application of Multiplicity Review Method to the Facts of this Case

¶ 11. We must first consider the Blockburger test, which looks at the elements of the charged crimes. Our analysis under Blockburger is affected by the validity of Beasley's assertion that the statutory scheme involves penalty enhancers. Accordingly, we begin by addressing Beasley's penalty enhancer argument.

¶ 12. In Beasley's view, the subsections of Wis. Stat. § 943.10(2) define penalty enhancers for the underlying crime of burglary, as defined in § 943.10(1). The rélevant statutory language reads as follows:

943.10 Burglary. (1) Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony in such place is guilty of a Class C felony:
(a)Any building or dwelling; or
(2) Whoever violates sub. (1) under any of the following circumstances is guilty of a Class B felony:
(a) While armed with a dangerous weapon or a device or container described under s. 941.26(4)(a); or
(b) While unarmed, but arms himself with a dangerous weapon or a device or container described under s. 941.26(4) (a) while still in the burglarized enclosure; or
(c) While in the burglarized enclosure opens, or attempts to open, any depository by use of an explosive; or
(d) While in the burglarized enclosure commits a battery upon a person lawfully therein.

¶ 13. Beasley's argument, that the subsections of Wis. Stat. § 943.10(2) define penalty enhancers rather than individual crimes, has superficial appeal and, at first blush, might appear to comport with common sense. But our analysis cannot rest on loose characterizations of a statutory scheme. A clear-eyed review of the statutes shows that the legislature did not fashion the subsections of § 943.10(2) as penalty enhancers. Instead, the plain language used defines stand-alone crimes, each with an element the others do not have.

¶ 14. Penalty enhancers, such as those defined in Chapter 939, authorize specified increases to separate specified penalties for underlying crimes. Thus, the underlying crime has a penalty, and the enhancer adds an additional penalty. Because of this structure, when the facts support multiple penalty enhancers, multiple enhancers may normally be applied to the same underlying crime. That is not the structure of Wis. Stat. § 943.10(2).

¶ 15. The subsections of Wis. Stat. § 943.10(2) each define a complete stand-alone crime. For example, § 943.10(2)(a) reads:

(2) Whoever violates [§ 943.10(1)] under any of the following circumstances is guilty of a Class B felony:
(a) While armed with a dangerous weapon or a device or container described under s. 941.26(4)(a)....

This language does not add an additional penalty to an underlying crime; it fully defines a distinct Class B felony. Section 943.10(2) incorporates the definition of burglary contained in § 943.10(1). Unlike a penalty enhancer, § 943.10(2)(a) contains all of the elements of the crime and is properly read as follows:

Whoever intentionally enters any of the places specified in § 943.10(1) without the consent of the person in lawful possession and with intent to steal or commit a felony, while armed with a dangerous weapon or a device or container described under s. 941.26(4)(a), is guilty of a Class B felony.

¶ 16. Further, unlike penalty enhancers, the various aggravating circumstances in the subsections of Wis. Stat. § 943.10(2) cannot be added to the underlying crime of burglary, either singly or in multiples. The reason is simple: they are fully defined stand-alone crimes, not penalty enhancers.

¶ 17. Beasley asserts that the easiest way to understand his multiplicity challenge is to consider the following hypothetical:

What would [have happened] if the jury [had] convicted [Beasley] on count five and six, but answered the enhancement questions in the negative? In this possible scenario, [Beasley] would be convicted of two counts of the exact same Burglary with Intent to Steal. That is obviously a double jeopardy violation.

The problem with Beasley's hypothetical is twofold. First, it really constitutes a challenge to the structure of the jury instructions, not a challenge to the propriety of multiple convictions under the statutes. In the absence of an objection to alleged instructional error, "this court is without the power to consider the objection." State v. Ward, 228 Wis. 2d 301, 305, 596 N.W.2d 887 (Ct. App. 1999). Second, we agree with the trial court that the jury could not have found Beasley guilty of burglary only and, therefore, could not have found him twice guilty of that crime only.

¶ 18. The verdict forms for both Counts 5 and 6 were in the same format. The verdict form for Count 5, burglary with intent to steal while possessing a dangerous weapon, reads as follows:

We, the Jury, find the defendant, Shawn A. Beasley, guilty of Party to the Crime of Burglary with Intent to Steal, in violation of sections 943.10(2)(a), and 939.05, of the Wisconsin Statutes, as charged in Count 5 of the Information herein.
IF YOU FIND THE DEFENDANT GUILTY OF COUNT 5, YOU MUST ANSWER THE FOLLOWING QUESTION:
Was the crime of Party to the Crime of Burglary with Intent to Steal committed while possessing a dangerous weapon?
Answer: _
CYes" or "No")

Although this verdict form told the jury it should only address the last element if it found Beasley "guilty of Count 5," the form did not provide a place for the jury to render a verdict on Count 5 without the weapon possession element. Rather, the jury was given only two choices: answer "Yes" or answer "No" to the existence of the weapon possession element. By answering yes, Beasley's jury affirmed that it found all of the other elements of this Class B felony. This form did not give the jury the opportunity to find Beasley guilty of burglary with intent to steal alone. If the jury did not find that all of the elements, including possessing a dangerous weapon, were present, its only option was to answer "no," resulting in acquittal on Count 5. The same is true with respect to Count 6.

¶ 19. Moreover, our resolution of Beasley's multiplicity challenge does not depend on the particular form of the verdicts in this case. The result would be the same even if the form verdicts had given Beasley's jury the opportunity to find Beasley guilty of simple burglary alone. In that situation, the verdict forms would have included two extra answers, but Beasley's jury still would have found the existence of all of the elements of the Class B felony defined in Wis. Stat. § 943.10(2)(a), and all of the elements of the separate Class B felony defined in § 943.10(2)(d).

¶ 20. Having rejected Beasley's penalty enhancer argument, we now apply the first step of multiplicity analysis, the Blockburger test. The question is "whether each of the offenses in this case requires proof of an element or fact that the other does not." Derango, 236 Wis. 2d 721, ¶ 30. It is readily apparent that Count 5 requires proof of an element and a fact that Count 6 does not, namely, while armed with a dangerous weapon. Similarly, Count 6 requires proof of an element and a fact that Count 5 does not, namely, battery.

¶ 21. Because Counts 5 and 6 are not identical in law, there is no potential double jeopardy problem and it is presumed that the legislature intended to permit multiple punishments for these crimes. See Davison, 263 Wis. 2d 145, ¶¶ 43-46. There may, however, still be a due process problem if the legislature did not intend to authorize cumulative punishments. Thus, we turn our attention to legislative intent. Beasley has the burden of showing clear legislative intent that multiple punishments have not been authorized by the legislature. Id., ¶¶ 44-45.

¶ 22. Normally, we would address the four legislative intent factors identified in Davison, that is, "(1) all applicable statutory language; (2) the legislative history and context of the statute; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishment for the conduct." Id., ¶ 50. However, we need not address these factors individually because Beasley makes only two legislative intent arguments.

¶ 23. Beasley argues that the legislature created one underlying crime of burglary with four possible "enhancements" under Wis.' Stat. § 943.10(2) and, therefore, the legislature could not have intended that a person be convicted multiple times for the same underlying burglary. However, we have demonstrated that this argument begins with an invalid premise. Section 943.10(2) defines individual crimes, not penalty enhancers. In fact, the clearest expression of legislative intent is the legislature's decision not to define the circumstances listed in the subsections of § 943.10(2) as penalty enhancers. By defining these subsections in terms of stand-alone crimes, rather than penalty enhancers, the legislature deprived the State the ability to charge a single underlying burglary with multiple penalty enhancers relating to the aggravating circumstances listed in § 943.10(2). That is, in order to address the legislative concern represented by each subsection (i.e., an armed intruder, an intruder who arms himself or herself after entry, use of an explosive to open a depository, and battery), a defendant must be charged with multiple Class B felonies when more than one of these circumstances is present.

¶ 24. Beasley's only other legislative intent argument is based on language in the comment to Wis. Stat. § 343.11 in 1953 A.B. 100 (a prior version of the aggravated burglary statute), which states:

Before a person can be convicted under this section, it is necessary to find the existence of all the elements necessary to constitute a crime under section 343.10 [currently sec. 943.10(1)], and in addition the existence of one of the aggravating factors set forth in this section.

Comment to Wis. Stat. § 343.11,1953 A.B. 100 (codified as Laws of 1953, ch. 623 (the Criminal Code)). This language, however, does not support Beasley's legislative intent argument. To the contrary, it describes the statutory scheme in a manner consistent with our discussion rejecting Beasley's enhancer argument.

¶ 25. Beasley has not met his burden of showing clear legislative intent that multiple punishments were not authorized by the legislature. Our own independent review of the statute, legislative history, nature of the proscribed conduct, and appropriateness of multiple punishments does not suggest that Beasley has missed a viable legislative intent argument.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The convictions in this case relate to crimes committed before February 1, 2003. For crimes committed on or after that date, burglary under Wis. Stat. § 943.10(1) has been reclassified to a Class F felony and burglary under § 943.10(2) has been reclassified as a Class E felony. See 2001 Wis. Act 109, §§ 721, 722, 9459.

       Beasley acknowledges that he first raised his multiplicity claim in a postconviction motion. Nonetheless, the circuit court chose to address Beasley's claim on the merits, and the State invites this court to do the same. Accordingly, we do not address possible waiver arguments.

       We may, however, address unobjected-to jury instructions "by way of our discretionary reversal authority under Wis. Stat. § 752.35." State v. Sterzinger, 2002 WI App 171, ¶ 19 n.7, 256 Wis. 2d 925, 649 N.W.2d 677, review denied, 2002 WI 121, 257 Wis. 2d 118, 653 N.W.2d 890 (Sept. 26, 2002) (No. 01-1440-CR).

       The instructions given to Beasley's jury make this clear. With respect to Count 5, those instructions read, in pertinent part:
      Burglary, as defined by the Criminal Code of Wisconsin, is committed by one who intentionally enters a building without the consent of the person in lawful possession and with intent to steal.
      Before you may find the defendant guilty of this offense, the State must prove by evidence which satisfies you beyond a reasonable doubt that the following four elements are present....
      Number one, that the defendant or another intentionally entered a building.

        Two, that the defendant or another entered the building without the consent of any person in lawful possession.
      Three, that the defendant or another knew that the entry was without consent.
      Four, that the defendant or another entered the building with intent to steal.
      This portion of the definition of burglary all relate[s] to both Counts 5 and 6.
      Now, Count 5 charges in addition to that that this occurred while armed, and these instructions apply now to Count 5.
      If you are satisfied beyond a reasonable doubt that the defendant committed all the elements of burglary ... you should find the defendant guilty of Count 5, party to the crime of burglary with intent to steal.
      If you are not so satisfied, you must find the defendant not guilty of Count 5.
      Count 5 of the Information alleges not only that the crime of burglary was committed, but also that crime was committed while armed with a dangerous weapon.
      If you find the defendant guilty of Count 5, party to the crime of burglary, you must answer the following questions yes or no: Was the crime of burglary committed while armed with a dangerous weapon?