author: NETTESHEIM, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Victor Naydihor, Defendant-Appellant.

    Court of Appeals

      Nos. 01-3093-CR, 01-3094-CR.

      Submitted on briefs September 12, 2002.

    Decided October 30, 2002.

    2002 WI App 272
    (Also reported in 654 N.W.2d 479.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Philip J. Brehm of Janesville.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Warren D. Weinstein, assistant attorney general.
    Before Nettesheim, RJ., Brown and Snyder, JJ.

       Petition to review filed.

   NETTESHEIM, PJ.

¶ 1. Victor Naydihor appeals from judgments of conviction for causing great bodily harm by the intoxicated use of a motor vehicle and felony bail jumping contrary to Wis. Stat. §§ 940.25(1)(a) and 946.49(l)(b) (1999-2000) and from an order denying his motion for postconviction relief. Naydihor's appeal stems from his resentencing, which was necessitated by improper remarks by the prosecutor in violation of the plea agreement at the original sentencing. The resentencing produced an increased sentence. On appeal, Naydihor argues that his trial counsel was ineffective at the resentencing for failing to object to certain remarks by the prosecutor which Naydihor contends once again breached the plea agreement. Naydihor also contends that the increased sentence was the product of judicial vindictiveness in violation of his due process rights.

¶ 2. We hold that the prosecutor did not violate the terms of the plea agreement at the resentencing hearing. Therefore, the resentencing court did not err in denying Naydihor's request for a Machner hearing. We further hold that the State properly presented updated information about the victim's current physical and financial condition and that the resentencing court was entitled to consider such information on the resen-tencing decision. Therefore, the increased sentence was not the product of judicial vindictiveness. We therefore affirm the judgments and order.

BACKGROUND

¶ 3. On February 25, 2000, Naydihor was involved in an accident with another vehicle causing injuries to its two occupants. The investigation determined that Naydihor was at fault and that he was intoxicated at the time of the accident. As a result, the State filed a criminal complaint against Naydihor alleging three counts: (1) causing great bodily harm by intoxicated use of a motor vehicle contrary to Wis. Stat. § 940.25(1)(a); (2) operating while intoxicated causing injury contrary to Wis. Stat. §§ 346.63(2)(a) and 346.65(3m); and (3) operating with a prohibited alcohol concentration (PAC) contrary to Wis. Stat. §§ 346.63(l)(b), 346.65(3m) and 340.01(46m).

¶ 4. On March 15, 2000, Naydihor waived his right to a preliminary hearing and entered into a plea agreement with the State. Under the agreement, Nay-dihor would plead guilty to causing great bodily harm by the intoxicated use charge, and the State would dismiss the remaining charges. The State further agreed to recommend a period of probation, but retained the right to recommend any conditions of probation.

¶ 5. On April 7, 2000, Naydihor appeared before Judge Barbara A. Kluka and entered a guilty plea to causing great bodily harm by the intoxicated use of a motor vehicle. In keeping with the plea agreement, the State dismissed the remaining charges and indicated that it would recommend probation, but retained a "free hand" on the conditions of that probation. After accepting Naydihor's plea, Judge Kluka scheduled sentencing for May 18, 2000, and ordered a presentence investigation. At the scheduled sentencing hearing, the State notified Judge Kluka that Naydihor had not cooperated in completing the presentence investigation and had not complied with the conditions of bond. Judge Kluka then granted the State's request to revoke Naydihor's bond, and the sentencing hearing was adjourned.

¶ 6. On May 22, 2000, the State charged Naydihor with felony bail jumping. Naydihor entered a no contest plea to that offense before Judge Kluka on July 6, 2000, and the matter proceeded to sentencing on both offenses — causing great bodily harm by the intoxicated use of a motor vehicle and bail jumping. Consistent with the plea agreement on the great bodily harm charge, the State argued for probation with one year of confinement in the county jail as a condition of probation. However, the prosecutor further stated that the State had entered into the plea agreement before learning the extent of Naydihor's prior record. Naydihor's counsel argued for probation with or without jail on the driving offense and a fine on the bail jumping offense. Judge Kluka also heard from Naydihor and reviewed a written impact statement from the victim.

¶ 7. In fashioning the sentence, Judge Kluka noted the victim's injuries, her medical expenses, her confinement to a wheelchair, and her inability to work for six months or to provide the necessary aid to her blind spouse. Judge Kluka ultimately rejected the plea agreement recommendation and sentenced Naydihor to three years' initial confinement followed by five years of extended supervision on the great bodily harm offense and ten years of consecutive probation on the bail jumping offense.

¶ 8. On December 4, 2000, Naydihor filed a post-conviction motion requesting resentencing. In his motion, Naydihor contended that the State had breached the plea agreement based on the prosecutor's statement that the State had entered into the plea agreement before learning the extent of Naydihor's prior record. At the hearing on the motion, the State did not contest Naydihor's argument, and Judge Kluka granted Naydihor's motion. Judge Kluka further directed that the matter be assigned to a different judge.

¶ 9. The matter was then assigned to Judge Bruce E. Schroeder who conducted the resentencing on March 5, 2001. The victim of Naydihor's offense appeared at the hearing and described the changes in her financial and physical condition since the time of her victim impact statement. The victim stated that she continued to be unable to walk or work. She indicated that she is "confined to a wheelchair" and "probably will be in it forever." She noted that her medical expenses had increased to approximately $70,000 and that the money from her uninsured motorist coverage had not covered her expenses.

¶ 10. As to the great bodily harm offense, both the State and Naydihor's counsel reiterated the positions they had taken in the original sentencing proceeding before Judge Kluka. Without objection from Naydihor's counsel, the prosecutor twice referred to Naydihor as a danger to the community and also addressed the worsened physical and financial condition of the victim. Like Judge Kluka, Judge Schroeder declined to follow either party's recommendation. Instead, Judge Schroeder sentenced Naydihor to five years of initial confinement followed by five years of extended supervision on the great bodily harm offense and ten years of consecutive probation on the bail jumping offense.

¶ 11. On September 14, 2001, Naydihor filed a postconviction motion requesting a second resentenc-ing or, in the alternative, the vacation of Judge Schroeder's sentence and the reimposition of Judge Kluka's sentence. Naydihor argued that the prosecutor's comments at resentencing had once again breached the plea agreement and that his counsel was ineffective for failing to object to the comments.

¶ 12. Judge Schroeder denied Naydihor's motion following a hearing on October 22, 2001. The judge determined that the prosecutor had not breached the plea agreement and that there were new factors presented at resentencing regarding the victim's physical and financial condition that warranted an increased sentence. A written order denying Naydihor's motion for postconviction relief was entered on November 13, 2001. Naydihor appeals.

DISCUSSION

Breach of Plea Agreement

¶ 13. Naydihor first contends that the prosecutor breached the terms of the plea agreement during the resentencing hearing before Judge Schroeder and, therefore, he was entitled to a Machner hearing to determine whether his counsel was ineffective for failing to object to the prosecutor's remarks. Judge Schroeder denied the motion without a hearing, ruling that the State had not breached the plea agreement.

¶ 14. In reviewing a breach of plea agreement case, this court will uphold the circuit court's determination of historical facts — the terms of the plea agreement and the State's conduct in question — unless they are clearly erroneous. State v. Williams, 2002 WI 1, ¶ 20, 249 Wis. 2d 492, 637 N.W.2d 733. However, whether the State's conduct constitutes a substantial and material breach of the plea agreement presents a question of law. Id.

¶ 15. The plea agreement in this case provided that the State would "recommend probation . . . but retain[ ] a free hand on the conditions of that probation." Naydihor contends that the prosecutor violated the plea agreement at resentencing by twice informing the court that Naydihor was a danger to the community. Naydihor additionally argues the prosecutor improperly emphasized the impact on the victim by stressing the victim's worsened financial and physical condition since the initial sentencing. Naydihor points to the following statements by the prosecutor:

There is no excuse whatsoever for what happened on February 25th last year. There is no excuse for an otherwise productive citizen of this community to now be confined to a wheelchair, to have bills racking up because of her inability to work and to have her young grandchild in fear when they did nothing wrong and the defendant did everything wrong ....
And, unfortunately, all the restitution in the world is not going to give [the victim] the ability to walk that she had before February 25, 2000.

¶ 16. Whether trial counsel was ineffective for failing to object to the prosecutor's remarks turns on whether the remarks violated the plea agreement. A prosecutor's statements constitute an actionable breach when the breach is material and substantial. See id. at ¶ 38. A material and substantial breach is one that defeats the benefit for which the accused bargained. Id. While a prosecutor need not enthusiastically recommend a plea agreement, he or she may not perform an "end run" around a plea agreement by covertly conveying to the trial court that a more severe sentence is warranted than that recommended. Id. at ¶ 42.

¶ 17. Here, the prosecutor agreed to recommend probation, but retained a "free hand" as to the conditions of probation, a caveat that is critical to the resolution of the issue. The prósecutor argued for maximum jail time without work release followed by a lengthy period of probation. In support of that request, the prosecutor could reasonably and fairly argue that Naydihor's driving conduct, which had caused serious and disabling injuries to the victim, represented a danger to the community. These statements dovetailed with the prosecutor's further discussion of Naydihor's "polysubstance abuse" and failure to pass substance tests when he was out on bond. As a result, the prosecutor requested that the conditions of probation also require Naydihor to obtain chemical dependency assessments, complete treatment programs, and submit to weekly random urine tests.

¶ 18. Naydihor relies on the supreme court's decision in Williams in support of his contention that the prosecutor's remarks at his resentencing constituted a material and substantial breach of his plea agreement. However, Naydihor's reliance is misplaced. Both the plea agreement and the prosecutor's comments in this case are readily distinguished from the agreement and comments in Williams.

¶ 19. In Williams, the State promised to recommend a sentence of three years' probation with sixty days in the county jail. Id. at ¶ 24. However, at sentencing the State provided a less than neutral recitation of the plea agreement and implied that had it known more about the defendant, it would not have entered into the plea agreement. Id. at ¶ 47. In addition, the prosecutor declared her personal negative opinion of the defendant, creating the impression that the State was backing away from the plea agreement. Id. at ¶ 48. The prosecutor in this case made no such indications.

¶ 20. Further, unlike the prosecutor in Williams, the prosecutor in this case did not reference the lengthier sentence recommendation in the presentence investigation report, much less imply that he agreed with it. Further, the prosecutor did not discuss imprisonment or incarceration during his statements to the court. Rather, consistent with the recommendation, the prosecutor stressed that Naydihor needed to be supervised and "monitored."

¶ 21. We conclude that the prosecutor's recitation of the State's recommendation was fairly and properly targeted at the State's request for maximum confinement as a condition of probation. Therefore, the statements were not a breach of the plea agreement, much less a material and substantial breach of the agreement. Although Judge Schroeder chose not to follow the State's recommendation, Naydihor nevertheless received the benefit of the agreement for which he bargained.

Vindictiveness of the Increased Sentence

¶ 22. Judge Kluka had originally sentenced Nay-dihor to a three-year term of initial confinement, followed by five years of extended supervision. At resen-tencing, Judge Schroeder increased Naydihor's initial term of confinement by two years for a total of five years of initial confinement, followed by five years of extended supervision. Naydihor argues that this increased sentence was vindictive and in violation of his constitutional right to due process.

¶ 23. While sentencing lies within the sound discretion of the trial court, whether an increased sentence on resentencing violates due process presents a question of law which we review de novo. State v. Church, 2002 WI App 212, ¶ 16, 257 Wis. 2d 442, 650 N.W.2d 873.

¶ 24. Naydihor relies on North Carolina v. Pearce, 395 U.S. 711 (1969), in support of his contention that the increased sentence imposed by Judge Schroeder violates his constitutional rights. In Pearce, the Supreme Court recognized the power of a resentencing court to impose a greater sentence than the one imposed initially. Id. at 723; see also State v. Helm, 2002 WI App 154, 256 Wis. 2d 285, 647 N.W.2d 405. However, the Pearce Court stressed that vindictiveness on the part of the sentencing court may not play a part in the resentencing after a new trial, and the defendant must not be placed in fear of such retaliatory motivations on the part of the sentencing judge. Pearce, 395 U.S. at 725. To protect a defendant against potential vindictiveness, the Pearce Court held that an increase in the sentence must be supported by reasons set forth on the record and must be "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id. at 726 (emphasis added).

¶ 25. Naydihor relies on Pearce in arguing that his increased sentence is impermissible because it is based not on his conduct, but on information relating to the impact of his crime on the victim. We reject Naydihor's contention that Pearce limited the tried court's ability at resentencing to consider factors other than his conduct.

¶ 26. Pearce involved a resentencing following a retrial. This court recently addressed the application of Pearce to a resentencing that did not occur after a retrial. Church, 2002 WI App 212 at ¶¶ 17-20. We determined that in such a case, we apply the broader rule set forth in State v. Leonard, 39 Wis. 2d 461, 473, 159 N.W.2d 577 (1968), a case decided one year prior to Pearce, which applies not only to resentencings after retrial but to any resentencing. Church, 2002 WI App 212 at ¶ 19.

¶ 27. The Leonard rule provides:

[O]n resentencing following a second conviction after retrial, or mere resentencing, the trial court shall be barred from imposing an increased sentence unless (1) events occur or come to the sentencing court's attention subsequent to the first imposition of sentence which warrant an increased penalty; and (2) the court affirmatively states its grounds in the record for increasing the sentence.

Leonard, 39 Wis. 2d at 473. We observe that there is no indication in Leonard that a trial court's consideration is limited to the defendant's conduct. Rather, we read Leonard to permit a resentencing court to consider any relevant information that developed, or events that have occurred, after the original sentence.

¶ 28. Our reading of Leonard is consistent with the Church court's discussion of the broad language in State v. Carter, 208 Wis. 2d 142, 560 N.W.2d 256 (1997). In Church, we concluded that Carter requires:

[T]he trial court should consider all relevant information at resentencing, including all information unknown to the court at the time of the original sentencing and information about events and circumstances occurring after the original sentencing.... [T]he role of the trial court is the same at a resentencing as at the original sentencing: the court is to consider at least the primary sentencing factors — gravity and nature of the offense, character of the defendant, and public safety — in light of all relevant and available information.

Church, 2002 WI App 212 at ¶ 15. Thus Carter, like Leonard, envisions the trial court considering much more than the defendant's conduct at resentencing.

¶ 29. Here, Judge Schroeder affirmatively stated that the increased sentence was based upon the new and more current information pertaining to the impact of Naydihor's offense on the financial and physical condition of the victim. Based on Leonard and Carter, we conclude that Wisconsin law favors the consideration of all relevant information at resentencing. This is so whether the information pertains to the defendant or the victim. Thus, the current information pertaining to the victim in this case was relevant to the resentencing decision and was properly considered by Judge Schroeder. Although the new and additional information operated to the detriment of Naydihor, such information might well benefit a defendant in another case.

¶ 30. This brings us to Naydihor's final argument. Naydihor contends that even if a sentencing court may consider factors other than the defendant's conduct, the factors considered here concerning the victim's condition were not "new or newly known" at the time of resentencing.

¶ 31. In Denny v. State, 47 Wis. 2d 541, 178 N.W.2d 38 (1970), the court instructed that in resen-tencing a defendant, "[a] trial judge is not free to re-evaluate the first sentence; he [or she] is in effect bound by the maximum of the previous sentence unless new factors or newly known factors justify'a more severe sentence." Id. at 544. Here, Judge Schroeder sentenced Naydihor to two additional years of initial confinement. Consistent with Denny, Judge Schroeder determined that the current facts relating to the victim's condition, not known at the time of the original sentencing, warranted an increased sentence. In justifying his departure from Judge Kluka's original sentence, Judge Schroeder stated the following reasons:

[Y]ou have ruined this lady's life. And this case, by the way, is significantly different than what it was when it was before Judge Kluka because Judge Kluka was working off this presentence, which stated that [the victim] suffered extensive injuries to her leg as a result of this accident, etc. [The victim] indicated that as a result of the injuries suffered to her left leg, she may have some permanent disability. Well, now we know that she will. And, in fact, she says she'll never walk again. That's a monstrous increase in the enormity of this crime from how it appeared before Judge Kluka. When Judge Kluka heard this case, it says [the victim] believes her medical expenses total at least $30,000.00. Now she says it's $75,000.00. And she hasn't seen anywhere near the end of it yet.

¶ 32. Naydihor contends that the facts cited by Judge Schroeder are legally insufficient to justify the increased sentence because Judge Kluka was already aware of the severity of the victim's injuries and of her continuing medical expenses. In support, Naydihor points to the following facts known to Judge Kluka: (1) the victim had incurred somewhere between $20,000 and $30,000 in medical expenses and that those expenses were "ongoing"; and (2) the victim would need additional surgery and therapy to treat her injuries and that she had suffered severe financial hardship. In addition, at the original sentencing, the victim's impact statement dated April 11, 2000, indicated that she would be in a wheelchair for six months and would be unable to walk or work during that period. Likewise, the presentence report indicated that she may have some "permanent disability," the extent of which would be officially determined when her cast was removed.

¶ 33. However, by the time of the resentencing on March 5, 2001, the information regarding the victim's physical and financial condition had changed. Despite predictions that she would be in a wheelchair for six months, the victim indicated at the resentencing that she was still confined to a wheelchair and would probably be forever. She continued to be unable to work or walk. She was facing a fourth surgery, her medical bills had been approximately $70,000 and the money she received from her uninsured motorist coverage had been exhausted.

¶ 34. Naydihor argues that whatever additional information Judge Schroeder learned from the victim, the constant fact remained that the victim's injuries were extensive and the financial impact was substantial. Since this was established before Judge Kluka, Naydihor reasons, there is no justification for an increased sentence. We disagree. The victim's need for a wheelchair extended at least six months past predictions at the time of the original sentencing. While the hardships of those six months — the inability to walk, work or care for her blind husband — remained constant, by the time of the resentencing, the length of the victim's need for a wheelchair was almost twice that considered at the original sentencing. Moreover, the financial impact was almost twice that considered at the original sentencing and was accompanied by information that the victim was now personally responsible for her medical bills because her uninsured motorist coverage had been exhausted.

¶ 35. We conclude that Judge Schroeder's departure from Judge Kluka's original sentence was justified by new information concerning the impact of Naydihor's offense on the victim's physical and financial condition. We therefore reject Naydihor's claim that Judge Schroeder's sentence was vindictive in violation of his constitutional due process rights.

CONCLUSION

¶ 36. We conclude that the prosecutor's remarks at the resentencing did not breach the terms of Naydihor's plea agreement and, as a result, Judge Schroeder did not err in denying Naydihor's request for a Machner hearing. We further conclude that Judge Schroeder properly considered new information as to the victim's physical and financial condition prior to resentencing. Finally, we are satisfied that the new information cited by Judge Schroeder was relevant to the sentencing decision and that the increased sentence was not the result of judicial vindictiveness in violation of Naydihor's due process rights. We therefore affirm the judgments and order.

By the Court. — Judgments and order affirmed.

       All statutory references are to the 1999-2000 version unless otherwise indicated.

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

       The plea agreement also disposed of various forfeiture citations related to the accident that are not relevant to this appeal.

       The State also asked for a $2000 fine on the bail jumping conviction.

       Naydihor moved for substitution of Judge Schroeder pursuant to Wis. Stat. § 971.20. That request was denied and Naydihor does not challenge that ruling on appeal.

       As to the bail jumping offense, neither party stated a position.


source: Caselaw Access Project

author: NETTESHEIM, EJ.

license: Public Domain

text:
    Lynda D. Dahlke, Petitioner-Respondent, v. James S. Dahlke, Respondent-Appellant.

    Court of Appeals

      No. 02-0194.

      Submitted on briefs September 12, 2002.

    Decided October 30, 2002.

    2002 WI App 282
    (Also reported in 654 N.W.2d 73.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Timothy J. Andringa of Cramer, Multhauf & Hammes, L.L.P. of Waukesha.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Charles I. Phillips of Phillips & Gemignani of Waukesha, and Julie M. Gay of Brenner, Brenner & Wall, L.L.P. of Waukesha.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petition for review denied 2-19-03.

   NETTESHEIM, EJ.

¶ 1. The family court denied James S. Dahlke's postjudgment motion seeking: (1) a reduction in his maintenance payments to his former wife, Lynda D. Dahlke; and (2) reimbursement for one-half of the college expenses he had paid for the parties' two adult children. In addition, the court included James' interest and dividend income when computing James' maintenance obligation for the 2000 tax year.

¶ 2. James appeals. He contends, that the family court erred in denying his motion for a reduction in the percentage of maintenance payable to Lynda based on a substantial change in his circumstances — a significant reduction in his income. James additionally argues under a theory of "unjust enrichment" that he is entitled to reimbursement for one-half of all college expenses he paid for the parties' adult children. Because the percentage maintenance order adequately addresses James' reduction in income, we conclude that the family court did not err in denying James' motion for a reduction of maintenance. We further conclude James is not entitled to reimbursement from Lynda for the children's college expenses under the law of unjust enrichment. Finally, we hold that the family court properly included James' interest and dividend income when computing James' maintenance obligation for the 2000 tax year. We affirm the postjudgment order.

BACKGROUND

¶ 3. James and Lynda were divorced on January 15, 1999, following a bench trial on the issue of maintenance before Judge Patrick C. Haughney. Judge Haughney rendered a bench decision which was later set forth in the judgment of divorce. The judgment required James to pay maintenance to Lynda in the amount of thirty-five percent (35%) of his earnings between a base of $100,000 and a cap of $568,000. Based on James' variable income, Judge Haughney concluded that a percentage maintenance award was more appropriate than a fixed dollar award. Both parties appealed from the maintenance provisions of the judgment and we affirmed in an unpublished opinion. See Dahlke v. Dahlke, No. 99-1398, unpublished slip op. (Wis. Ct. App. May 3, 2000).

¶ 4. While the appeal was pending before this court, both Lynda and James filed postjudgment motions. The motions were heard by Judge Lee S. Dreyfus. In her motion, Lynda sought to reopen the property division provisions of the judgment and James requested a modification of maintenance based in part upon his payment of their children's college expenses. By a written decision, Judge Dreyfus denied both motions. Again both parties appealed. However, they later voluntarily dismissed the appeals.

¶ 5. The current appeal relates to further post-judgment motions before Judge Dreyfus filed by both parties. On January 16, 2001, James filed a motion seeking a reduction in maintenance and order for "reimbursement for unjust enrichment for overpayment of maintenance." James' unjust enrichment claim pertained to his payment of the college expenses of the parties' two adult children. On March 15, 2001, Lynda filed a motion requesting the court to dismiss James' motion on the basis of mootness, issue preclusion and failure to state a claim. On May 21, 2001, Lynda filed another motion seeking a computation of the maintenance arrearage for the calendar year 2000 and an order directing how that arrearage should be paid.

¶ 6. Following a motion hearing on November 16, 2001, Judge Dreyfus issued a bench decision followed by a number of clarification rulings. The end result of these rulings was an order denying James' motion for modification or reduction in maintenance, denying James' request for reimbursement of one-half of the college expenses, and granting Lynda's request for a determination of maintenance due for the year 2000. In computing James' 2000 income, Judge Dreyfus included James' interest and dividend income. The order also found James in contempt for failure to pay the full amount of maintenance due to Lynda for the year 2000. James appeals.

DISCUSSION

Modification of Maintenance

¶ 7. James first argues that Judge Dreyfus erred in denying his motion to modify maintenance. James contends that he demonstrated a substantial change in circumstances based upon the significant decrease in his employment earnings and Lynda's reduced need for maintenance since the time of the divorce.

¶ 8. Under Wis. Stat. § 767.32 (1999-2000), a trial court may revise a maintenance order if there has been a substantial change in the parties' financial circumstances. See Erath v. Erath, 141 Wis. 2d 948, 953, 417 N.W.2d 407, 409 (Ct. App. 1987). The question of whether there has been a substantial change of circumstances presents a mixed question of fact and law. Rosplock v. Rosplock, 217 Wis. 2d 22, 32-33, 577 N.W.2d 32 (Ct. App. 1998). The trial court's findings of fact regarding the parties' circumstances "before" and "after" the divorce and whether a change has occurred will not be disturbed unless clearly erroneous. Id. at 33. However, whether the change is substantial is a question of law which we review de novo. Id. A substantial or material change in the circumstances should be such that it would be unjust or inequitable to strictly hold either party to the judgment. Id. Because the trial court's legal determination is intertwined with its factual findings, we nevertheless give weight to the trial court's decision. Id.

¶ 9. Here, the factual findings of Judge Dreyfus are supported by the evidence and are not contested by the parties. Judge Dreyfus found that James' income at the time of divorce was $568,000, which was the income cap under the percentage formula ordered by Judge Haughney. This figure included James' base salary of $265,000, his bonus of $270,000 and country club and car allowances of $9000 each. Following the divorce, James' employment was terminated and he received approximately $1.2 million dollars from stock options. At the time of the hearing, Judge Dreyfus found that James' new employment provided "earned income ... at a significantly reduced level." The record reflects that James' year 2000 earnings were approximately $179,318.

¶ 10. Lynda's actual income at the time of divorce was $64,000; however, Judge Haughney imputed income of $75,000 based on the potential that Lynda would receive a bonus. At the time of the postjudgment hearings, Judge Dreyfus determined Lynda's income to be approximately $60,000.

¶ 11. James sought an order modifying his percentage maintenance obligation from 35% to 25% of his income. Judge Dreyfus denied this request, concluding that the percentage formula had already significantly affected Lynda's maintenance in direct proportion to James' salary decrease. We agree. A substantial change in circumstances envisions a circumstance in which it would be unjust or inequitable to strictly hold an obligor to the judgment. Id. James has failed to demonstrate such a circumstance in this case. Although James' income has undisputedly decreased, so has his corresponding maintenance obligation. He has failed to illustrate how this renders the original percentage maintenance award unjust or inequitable to him now.

¶ 12. James additionally argues that a modification is warranted by Lynda's self-created and decreased need for maintenance. In support, James points to Lynda's decision to terminate her employment the day after the divorce was granted and her ensuing decision to become self-employed, resulting in earnings far less than her earnings at the time of the divorce. James argues that "[a]ny. financial problems suffered by [Lynda] as a result of her day after divorce career change was of her own making." However, this issue came before Judge Dreyfus via James' motion for a reduction in maintenance, not via any motion from Lynda seeking an increase in maintenance as a result of career change or her reduced income. In short, Lynda was not seeking more maintenance; rather, she was accepting less under the percentage formula.

¶ 13. Moreover, Judge Haughney's original maintenance award in this case was grounded more on the fairness component of maintenance rather than the support component (see LaRocque v. LaRocque, 139 Wis. 2d 23, 32-33, 406 N.W.2d 736 (1987)), a matter noted in our prior opinion in the earlier appeal. Dahlke, unpublished slip op. at ¶ 8. Although both parties have suffered declines in their respective incomes, the percentage maintenance order has adequately and fairly accommodated this change. In summary, Lynda's decreased income is not relevant to James' argument for a reduction in maintenance.

¶ 14. Nor are we persuaded by James' argument that Lynda's need for maintenance has substantially decreased due to her decision not to contribute to their daughters' college expenses. James' argument is based on Lynda's budget allocation at trial of $2649 per month for one-half of the college expenses. Now that the adult daughters have graduated from college, James reasons that Lynda can no longer claim that expense. However, while Judge Haughney recognized the college expenses as legitimate expenses for purposes of the parties' budgets, the judge did not order either party to pay for the educational needs of their adult children. As Judge Dreyfus correctly noted in his postjudgment decision, a family court does not have the authority to order the parties to pay for the education of their adult children. See Resong v. Vier, 157 Wis. 2d 382, 389, 459 N.W.2d 591 (Ct. App. 1990).

¶ 15. In short, the parties' representations as to the children's college expenses did not influence Judge Haughney's original maintenance determination. Indeed, our previous opinion recognized as much when we said, "[t]he bottom line on Lynda's budget did not impact the fairness decision the circuit court ultimately made." See Dahlke, unpublished slip op. at ¶ 10. Therefore, any decrease in Lynda's expenses would not constitute a substantial change of circumstances.

¶ 16. Under the facts of this case, we uphold Judge Dreyfus's ruling that James failed to demonstrate a substantial change in circumstance warranting a modification or reduction of maintenance.

Reimbursement of College Expenses

¶ 17. James next argues that the trial court erred in denying his motion to recover one-half of all college expenses he paid for the parties' adult daughters. James contends that he is entitled to reimbursement on the basis of unjust enrichment. He argues that Lynda represented to Judge Haughney that she would be contributing one-half of the college expenses and that Judge Haughney awarded maintenance based on that representation.

¶ 18. We begin by addressing James' attempt to invoke the law of "unjust enrichment" in the context of this divorce action. James' argument in support of his "unjust enrichment" claim alternates between the common law of unjust enrichment and the family court's equitable powers in a divorce action. In providing a framework for his argument, James cites to the elements of an "unjust enrichment" claim as set forth in the Wisconsin Jury Instructions for civil actions. See Wis JI — Civil 3028. Those elements are: (1) a benefit conferred upon the defendant by the plaintiff, (2) knowledge or appreciation of the benefit by the defendant, and (3) acceptance and retention by the defendant of such benefit under such circumstances that it would be inequitable for him or her to retain it without paying the value thereof. Id. James argues that he has established these essential elements of "unjust enrichment" and is thus entitled to reimbursement for one-half of the college expenses he has paid.

¶ 19. James argues that Brabec v. Brabec, 181 Wis. 2d 270, 510 N.W.2d 762 (Ct. App. 1993), and Jacobson v. Jacobson, 177 Wis. 2d 539, 502 N.W.2d 869 (Ct. App. 1993), support his argument that the common law cause of action for unjust enrichment is applicable in divorce proceedings. While these and other cases have used the term "unjust enrichment" to describe a financial windfall to one party to a divorce action, we disagree that these utterances have signaled that a civil claim for unjust enrichment can be litigated within the context of a divorce action. To the contrary, the Brabec court used the phrase "unjust enrichment" when considering the fairness objective of maintenance, stating,

The fairness objective is meant to ensure a fair and equitable financial arrangement between the parties in each individual case; to "compensate the recipient spouse for contributions made to the marriage, give effect to the parties' financial arrangements, or prevent unjust enrichment of either party."

Brabec, 181 Wis. 2d at 277 (quoting LaRocque, 139 Wis. 2d at 33). Similarly in Jacobson, the court used the phrase "unjust enrichment" to describe a financial windfall to one of the parties, not as a judicial declaration that an unjust enrichment claim can be litigated in a divorce proceeding. See Jacobson, 177 Wis. 2d at 548.

¶ 20. Furthermore, a common law claim of "unjust enrichment" involves aspects of civil procedure that do not apply to actions affecting the family. A common law claim of "unjust enrichment" contemplates its own set of pleadings, separate and distinct from those in a family court action. See, e.g., Wis. Stat. ch. 801; Wis. Stat. § 767.085 (setting forth requirements for a petition in any action affecting the family); Wis. Stat. § 767.025 (setting forth filing procedures for orders for enforcement and modification of family law judgments). Moreover, as the jury instructions suggest, an unjust enrichment action can be tried to a jury whereas juries are not available in a divorce action.

¶ 21. Finally, we find no precedent, nor does James cite to any, that has litigated a common law action for "unjust enrichment," or even the application of the civil elements of an action for unjust enrichment, in an action affecting the family. We conclude that a common law action for unjust enrichment cannot be litigated in a divorce action.

¶ 22. Insofar as James' invocation of the law of unjust enrichment is addressed to the equitable powers of the family court, we see no misuse of discretion by Judge Dreyfus in denying James' request that Lynda reimburse him for one-half of the children's college expenses. As discussed earlier in this opinion, Lynda had no legal obligation to pay the expenses of her adult daughters' educations. Also as noted, although Judge Haughney recognized the college expenses as an appropriate budget request, the judge did not impose any obligation on either party to pay such expenses, nor did Judge Haughney base the maintenance award on any potential contributions either party might choose to make regarding those expenses. Moreover, while Lynda claimed one-half of the monthly college expenses on her budget, James claimed all of the monthly college expenses on his budget. Thus, James' budget reflects an intention to do exactly what he did — pay for all of his daughters' college expenses.

¶ 23. In summary, Judge Haughney's maintenance award was not influenced by the parties' budget representations regarding their intentions as to the college expenses. Therefore, when Lynda chose not to contribute to those expenses, James was not entitled to an equitable reduction of his maintenance obligation.

¶ 24. We conclude that Judge Dreyfus did not err in the exercise of his discretion by denying James' request for the reimbursement of one-half of college expenses he paid for the parties' daughters.

James' Year 2000 Maintenance Obligation

¶ 25. James' final argument is that Judge Dreyfus erred when he included James' interest and dividend income when calculating James total income for the year 2000, producing a total income of $325,127.01. This figure included James' W-2 income of $179,318.01, interest income of $29,654, dividend income of $45,996 and bonus income of $64,159. Based upon that determination, Judge Dreyfus calculated the total maintenance due for the calendar year 2000 to be $78,794 pursuant to the percentage formula. Subtracting maintenance already paid by James to Lynda, Judge Dreyfus determined that James owed Lynda an additional amount of $30,013.28.

¶ 26. In support of his argument, James points out that Judge Haughney did not include his interest and dividend income when originally determining his income under the percentage formula. Thus, James reasons that Judge Dreyfus erroneously modified the judgment by including his interest and dividend income under the most recent calculation of his income for the year 2000. To answer this challenge, we must construe the judgment. That exercise presents a question of law that we review de novo. See Rohan Motor Co. et al. v. Industrial Comm, of Wis., 188 Wis. 223, 227-28, 205 N.W. 930 (1925).

¶ 27. The maintenance provisions of the judgment state:

The court concludes that an award of 35% of [James'] earnings between $100,000.00 and $568,000.00 meets the Need objective and the Fairness objective for [Lynda's] request for maintenance.

Contrary to James' assertions, the judgment places no limitation, employment or otherwise, on the "earnings" to be considered for purposes of maintenance.

¶ 28. Judge Dreyfus noted that at the time of the judgment, James' employment income alone satisfied the $568,000 cap under the formula. Therefore, Judge Haughney was not required to look to James' additional income sources to fulfill the fairness and support objectives of maintenance. Judge Dreyfus additionally observed that while the judgment clearly limits the amount of income to be considered for purposes of maintenance, it sets forth no limitation on the type of income to be considered.

¶ 29. The mere fact that James' employment income at the time of the divorce met the ceiling under the percentage formula does not mean that other sources of income were off limits if James' employment income later fell below that ceiling. Therefore, Judge Dreyfus' decision to include James' interest and dividend income, resulting in total income of $325,127, is consistent with the terms and goals of the judgment.

¶ 30. Because James' year 2000 employment income was significantly less than the $568,000 ceiling set forth in the judgment of divorce, Judge Dreyfus looked to see if the judgment excluded James' interest and dividend income from the maintenance formula. Clearly, it does not. We uphold Judge Dreyfus' interpretation of the judgment.

CONCLUSION

¶ 31. We conclude that the trial court properly exercised its discretion in denying James' motion to modify maintenance based on its finding that James' reduced income did not constitute a substantial change of circumstances. We further conclude that James is not entitled to reimbursement of the college expenses he voluntarily paid on behalf of the parties' adult daughters. Finally, we uphold the trial court's inclusion of James' interest and dividend income when determining James' maintenance obligation for the calendar year 2000. We therefore affirm the postjudgment orders.

By the Court. — Order affirmed.

       All other issues were addressed in the parties' marital settlement agreement, which was incorporated in the trial court's Findings of Facts, Conclusions of Law and Judgment of Divorce.

       The trial court had initially determined that James owed $42,338.88 in past due maintenance.

       All statutory references are to the 1999-2000 version.

       Our holding should not be misconstrued. We do not hold that a substantial change in circumstances cannot ever be established under a percentage maintenance order. We simply hold under the facts of this case that the percentage maintenance order has adequately addressed the change in the parties' circumstances.

       We note that Lynda raises issue preclusion with respect to James' claim for reimbursement based on the payment of college expenses. Regardless, we choose to address the issue.

       We note that the trial court used James' W-2 income as indicated for Medicare purposes so as to take into account monies paid by James into a 401k account.

       The trial court denied Lynda's request to include James' capital gains as taxable income subject to maintenance.

       James also relies on Hefty v. Hefty, 172 Wis. 2d 124, 493 N.W.2d 33 (1992). There the supreme court approved a maintenance award based on a percentage of the payor's employment earnings and future bonuses. Id. at 130-33. James' reliance on Hefty is a nonstarter. Simply because the Hefty court upheld a judgment that limited the maintenance calculation to salary and bonuses does not mean that another court must do likewise when the judgment is worded differently. Here, the judgment is worded differently from that in Hefty. The judgment extends to all forms of income earned by James.


author: LUNDSTEN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Dawn M. Champion, Defendant-Appellant.

    Court of Appeals

      No. 01-1894-CR.

      Oral argument May 31, 2002.

    Decided October 31, 2002.

    2002 WI App 267
    (Also reported in 654 N.W.2d 242.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Trish Arreazola of Sedor & Hoag, S.C., Janesville.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Kathleen M. Ptacek, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by Kathleen M. Ptacek.

    Before Dykman, Roggensack and Lundsten, JJ.

       Petition to review denied 3-13-03.

   LUNDSTEN, J.

¶ 1. Dawn M. Champion appeals an order denying her motion for sentence modification. Champion was sentenced under truth-in-sentencing. Champion argues that events relating to her rehabilitation while in confinement constitute a new sentencing factor, thereby making her eligible for sentence modification. We conclude that events subsequent to sentencing and relating to rehabilitation do not constitute a new sentencing factor, and affirm the circuit court.

Background

¶ 2. Champion pled guilty to the crime of causing great bodily harm by the operation of a vehicle while under the influence of an intoxicant, contrary to Wis. Stat. § 940.25(l)(a) (1997-98). She was sentenced under truth-in-sentencing. Champion received a six-year sentence composed of three years of confinement and three years of extended supervision. At the sentencing hearing, the trial court expressed the hope that the sentence imposed included enough confinement time to allow Champion to receive treatment for her alcohol and drug abuse issues.

¶ 3. After about fourteen months of confinement, Champion moved to modify the confinement portion of her sentence from three years to two years. Champion presented evidence that she would soon complete all of the programming available to her while in prison. Champion argued that she had met the rehabilitation objective of the original sentence in less time than anticipated by the court, and that her quick completion of rehabilitation programs presented a new sentencing factor. The circuit court denied the motion, stating that rehabilitation is not a new factor as a matter of law.

Discussion

¶ 4. The law governing sentence modification based on a "new factor" is well settled. A defendant seeking modification based on a new factor must show (1) that the new factor exists and (2) that the new factor justifies modification of the sentence. See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989). A "new factor" is

a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original 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.

Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). In addition, "a 'new factor must be an event or development which frustrates the purpose of the original sentence." State v. Michels, 150 Wis. 2d 94, 99, 441 N.W.2d 278 (Ct. App. 1989). "New factors" must be proved by clear and convincing evidence. Franklin, 148 Wis. 2d at 8-9. "Whether a set of facts is a 'new factor' is a question of law which we review without deference to the trial court. Whether a new factor warrants a modification of sentence rests within the trial court's discretion." Michels, 150 Wis. 2d at 97 (citations omitted).

,¶ 5. Champion contends that her early completion o'f all available rehabilitation programs constitutes a new factor. Champion reasons that (1) because her sentencing court's main concern was her alcohol and drug addiction, (2) because her sentencing court was unaware that she would complete all of the programming available in prison well before the end of her sentence, and (3) because this development frustrates the purpose of her original sentence, this court should conclude that Champion's quick rehabilitation meets the new factor test.

¶ 6. Champion acknowledges that, prior to truth-in-sentencing, her rehabilitation argument would have failed. This concession is appropriate. A number of cases have held that post-sentencing rehabilitation does not constitute a new factor. Champion correctly points out, however, that each of those cases was predicated on the existence of parole and the determination that an inmate's rehabilitation was an issue best addressed by the parole board. See State v. Kluck, 210 Wis. 2d 1, 7-8, 563 N.W.2d 468 (1997); see also State v. Scaccio, 2000 WI App 265, ¶ 15, 240 Wis. 2d 95, 622 N.W.2d 449. According to Champion, the absence of parole should cause this court to reconsider the limitations imposed prior to truth-in-sentencing with respect to using rehabilitation as a new sentencing factor. We disagree. We need not determine whether we should expand the common law as suggested by Champion because we agree with the State that Champion's proposal contravenes legislative intent behind truth-in-sentencing.

¶ 7. Under truth-in-sentencing, every inmate must serve a bifurcated sentence of confinement followed by a term of extended supervision. See Michael B. Brennan & Donald V Latorraca, Truth-in-Sentencing Comes to Wisconsin, 73 Wis. Law., No. 5, May 2000, at 14-17. Truth-in-sentencing abolished both parole and confinement reductions for "good time." Wis. Stat. § 973.01(4) and (6). With limited exceptions, § 973.01 removed all statutory provisions that might serve to reduce an inmate's confinement based on the inmate's rehabilitation. In contrast, inmates sentenced under the law in place for felonies committed before December 31, 1999, become parole-eligible after serving one-fourth of the imposed sentence. If such inmates are denied parole, they must wait up to a year, and in some cases longer, before being reconsidered for parole. Wis. Admin. Code § PAC 1.06(2).

¶ 8. In effect, Champion asks this court to give truth-in-sentencing inmates an open-ended right to seek sentence modification whenever they believe they have a new rehabilitation argument. For example, Champion's proposal presumably permits an inmate who "unexpectedly" obtains a high school equivalency diploma or college degree to seek sentence modification. Our threshold inquiry is whether such a request is consistent with truth-in-sentencing legislation.

¶ 9. "The purpose of statutory interpretation is to discern the intent of the legislature." State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997). "A statute must be construed to promote its purpose and objective." City of Wisconsin Dells v. Dells Fireworks, Inc., 197 Wis. 2d 1, 20, 539 N.W.2d 916 (Ct. App. 1995). "In construing a statute, the court must consider it 'in relation to its scope, history, context, subject matter and object to be accomplished.'" State v. Excel Mgmt. Servs., Inc., 111 Wis. 2d 479, 487, 331 N.W.2d 312 (1983) (quoting Kollasch v. Adamany, 104 Wis. 2d 552, 563, 313 N.W.2d 47 (1981)).

¶ 10. The construction of a statute is a question of law which we review without deference to the circuit court. DeMars v. LaPour, 123 Wis. 2d 366, 370, 366 N.W.2d 891 (1985). We first look to the language of the statute and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). Only when statutory language is ambiguous may we examine other construction aids such as legislative history, context, and subject matter. State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986). A statute is ambiguous if reasonable persons could disagree as to its meaning. Williquette, 129 Wis. 2d at 248. "When construing statutes we are to give them their common-sense meaning to avoid unreasonable and absurd results." Janssen v. State Farm Mut. Auto. Ins. Co., 2002 WI App 72, ¶ 16, 251 Wis. 2d 660, 643 N.W.2d 857.

¶ 11. As noted above, legislative history may aid in the construction of ambiguous statutes. When viewing legislative history, it is appropriate to consider materials created by the Legislative Council. See, e.g., Madison Landfills, Inc. v. Libby Landfill Negotiating Comm., 188 Wis. 2d 613, 630, 524 N.W.2d 883 (1994); State v. Mitchell, 144 Wis. 2d 596, 614, 424 N.W.2d 698 (1988); Hartlaub v. Coachmen Indus., Inc., 143 Wis. 2d 791, 800-01, 422 N.W.2d 869 (Ct. App. 1988). In addition, "[w]e may look to the [Legislative Reference] Bureau's analysis of a bill for aid when construing an ambiguous statute." La Palio v. Estate of Habelman, 145 Wis. 2d 228, 233, 426 N.W.2d 363 (Ct. App. 1988). Furthermore, "[d] rafting requests and statements made by sponsors of legislation prior to enactment have long been considered authoritative in construing legislative intent." State v. Post, 197 Wis. 2d 279, 344, 541 N.W.2d 115 (1995) (Abrahamson, J., dissenting) (footnote omitted); see also 2A Norman J. Singer, Sutherland Statutory Construction § 48.15, at 475-76 (6th ed. 2000); Kelley Co., Inc. v. Marquardt, 172 Wis. 2d 234, 248-49 & n.9, 493 N.W.2d 68 (1992) (statements by bill's sponsor comprise "legislative history" revealing purpose of statute); Foerster, Inc. v. Atlas Metal Parts Co., 105 Wis. 2d 17, 24, 313 N.W.2d 60 (1981) (statements by bill's sponsor, including a press release regarding the bill, provide evidence of legislative intent).

Of course, the interpretation by the author or sponsor of legislation is not binding on this court's interpretation of legislative enactments. Nor are comments by an agency affected by legislation or charged with implementing legislation binding on this court's interpretations of those legislative enactments. However, the interpretations of authors or sponsors or agencies may be persuasive and we will consider such information when useful and appropriate.

State Public Defender v. Circuit Court, 184 Wis. 2d 860, 868-69, 517 N.W.2d 144 (1994) (citations omitted).

¶ 12. The plain language of the truth-in-sentencing statutes does not answer the question presented because no statutory provision addresses the availability of sentence modification. Moreover, we conclude, in light of "new factor" case law, that truth-in-sentencing's elimination of parole creates ambiguity as to whether a circuit court may modify a sentence based on new evidence of an inmate's rehabilitation. Truth-in-sentencing's elimination of parole creates ambiguity because it could reasonably be interpreted as opening the door to judicial sentence modification to ameliorate the effect of eliminating parole. Conversely, it can be argued that the legislature's purpose in eliminating parole was to instill certainty and definiteness to confinement. Because reasonable persons can differ as to whether the statutory language prohibits judicial sentence' modification based on prisoners' rehabilitation, we turn to extrinsic evidence of the legislature's intent.

¶ 13. Our review of the legislative history of 1997 Wis. Act 283 demonstrates that the legislature intended something inconsistent with Champion's proposal. That is, the legislature intended that truth-in-sentencing create certainty as to the duration of confinement at the time a sentence is imposed, something fundamentally inconsistent with the open-ended availability of sentence modification based on post-sentencing factors relating to rehabilitation.

¶ 14. Two Legislative Council staff memorandums describing the truth-in-sentencing legislation, dated June 4, 1997, and May 4, 1998, both state that persons sentenced under truth-in-sentencing "must serve 100% of the term of confinement in [the] prison portion of the sentence before serving the term of community supervision portion of the sentence." Wisconsin Legislative Council Staff Memorandum, Analysis of 1997 Assembly Bill 351, at 4 (June 4, 1997); Wisconsin Legislative Council Staff Memorandum, Analysis of Senate Substitute Amendment 1, as Affected by Senate Amendment 3, to 1997Assembly Bill 351, at 4 (May 4, 1998) (available in Legislative Council's drafting notes to 1997 A.B. 351). In addition, the May 4, 1998, memorandum states that persons sentenced under truth-in-sentencing "must serve the time of confinement in prison without reduction in time for good behavior." May 4, 1998, memorandum, at 4.

¶ 15. Moreover, the Legislative Reference Bureau's analysis attached to the bill that proposed truth-in-sentencing provides that prisoners must complete the confinement portion of their sentence before they are released on extended supervision. 1997 A.B. 351, Analysis by the Legislative Reference Bureau. The bureau's analysis uses the term "community supervision" instead of the current "extended supervision." Id. Assembly Substitute Amendment 1 to 1997 A.B. 351 substituted "extended supervision" for "community supervision" as a non-substantive amendment. Notably, a drafter's note from the bureau to the representative sponsoring the amendment regarding the change from "community supervision" to "extended supervision" states: "I understand that you prefer the phrase 'extended supervision' as a way of promoting the idea of continued supervision after the completion of [a] definite period of confinement in prison." Drafter's Note from Legislative Reference Bureau re: LRBs0162/ldn by Jefren E. Olsen, Legislative Attorney, at 1.

¶ 16. In addition, testimony by two sponsoring representatives is consistent with other legislative history. Testifying before the Assembly Criminal Justice & Corrections Committee on May 8, 1997, Representative Scott Walker referred to the truth-in-sentencing bill as adding "certainty in sentencing," and stated that inmates will be less prone to recidivism when they are "incarcerated for the full length of their sentences." Representative Tom Sykora testified before the same committee on the same day: "When criminals are sentenced to 20 years they will serve 20 years — not a minute less .... Citizens expect Wisconsin to monitor and control criminals after they have completed 100% of their prison term." Additionally, Representative Sykora stated, "[criminals] deserve a 'true', 'complete', and 'un-wavering' sentence from a judge who is accountable to the people." Truth-in-Sentencing: Testimony on A.B. 351 before the Assembly Criminal Justice & Corrections Comm., 1997 Reg. Sess., May 8, 1997 (testimony of Representatives Scott Walker and Tom Sykora, available in Legislative Council's drafting notes to 1997 A.B. 351).

¶ 17. Accordingly, we conclude that the legislature, with the limited statutory exceptions noted above, intended that truth-in-sentencing inmates serve every day of the confinement term imposed. Regardless whether Champion's proposed expansion of "new factor" law is good or bad policy, it must fail because it would seriously undermine the legislature's intent to create certainty in the length of confinement at the time of sentencing. It is not reasonable that the legislature would intend to provide both the defendant and the public with certainty regarding confinement and then permit the courts to undo that certainty with the change in sentence modification law proposed by Champion. At the same time, we stress that this opinion should not be read as suggesting the legislature has undone "new factor" case law. Nothing in this opinion affects a defendant's right to seek sentence modification under existing "new factor" law.

By the Court. — Order affirmed.

       The term "truth-in-sentencing" is shorthand for the sentencing revisions enacted in 1998 that are applicable to felonies committed on or after December 31, 1999. See 1997 Wis. Act 283, § 419, creating Wis. Stat. § 973.01. The term "truth-in-sentencing" does not, however, appear in the statute or in the enacting legislation.

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

        See Jones (Hollis) v. State, 70 Wis. 2d 62, 72, 233 N.W.2d 441 (1975); State v. Wuensch, 69 Wis. 2d 467, 477-78, 230 N.W.2d 665 (1975); State v. Scaccio, 2000 WI App 265, ¶ 15, 240 Wis. 2d 95, 622 N.W.2d 449; State v. Ambrose, 181 Wis. 2d 234, 240, 510 N.W.2d 758 (Ct. App. 1993); State v. Easier, 148 Wis. 2d 789, 804, 436 N.W.2d 891 (Ct. App. 1989); State v. Prince, 147 Wis. 2d 134, 136-37, 432 N.W.2d 646 (Ct. App. 1988); State v. Krueger, 119 Wis. 2d 327, 335, 351 N.W.2d 738 (Ct. App. 1984).

       The State argues that State v. Kluck, 210 Wis. 2d 1, 563 N.W.2d 468 (1997), controls this case. In Kluck, the court held that rehabilitation did not constitute a new factor for defendants sentenced to jail even though such defendants are not eligible for parole. Id. at 8. We acknowledge that Kluck contains language supporting the State's position, but we do not think that Kluck controls the issue before us. In any event, we need not address Kluck because of our conclusion that legislative intent precludes consideration of Champion's proposed change to common law.

       Wisconsin Stat. § 973.01 reads, in relevant part:
      (1) Bifurcated sentence required. Except as provided in sub. (3), whenever a court sentences a person to imprisonment in the Wisconsin state prisons for a felony committed on or after December 31, 1999, the court shall impose a bifurcated sentence that consists of a term of confinement in prison followed by a term of extended supervision under s. 302.113.
      (4) No good time; extension or reduction of term of imprisonment. A person sentenced to a bifurcated sentence under sub. (1) shall serve the term of confinement in prison portion of the sentence without reduction for good behavior. The term of confinement in prison portion is subject to extension under s. 302.113(3) and, if applicable, to reduction under s. 302.045(3m).
      (6) No parole. A person serving a bifurcated sentence imposed under sub. (1) is not eligible for release on parole.
      (7) No discharge. The department of corrections may not discharge a person who is serving a bifurcated sentence from custody, control and supervision until the person has served the entire bifurcated sentence.
      (8) Explanation of sentence, (a) When a court imposes a bifurcated sentence under this section, it shall explain, orally and in writing, all of the following to the person being sentenced:
      1. The total length of the bifurcated sentence.
      2. The amount of time the person will serve in prison under the term of confinement in prison portion of the sentence.

        3. The amount of time the person will spend on extended supervision, assuming that the person does not commit any act that results in the extension of the term of confinement in prison under s. 302.113(3).
      4. That the amount of time the person must actually serve in prison may he extended as provided under s. 302.113(3) and that because of extensions under s. 302.113(3) the person could serve the entire bifurcated sentence in prison.
      (b) The court's explanation under par. (a) 3. of a person's potential period of extended supervision does not create a right to a minimum period of extended supervision.

       There are two exceptions. A court may sentence eligible inmates to the challenge incarceration program, in which inmates who successfully complete the program receive a reduced period of confinement. Wis. Stat. § 302.045(3m). In addition, inmates serving a life sentence may petition the court for release to extended supervision after reaching their extended supervision eligibility date, as imposed by the sentencing court. Wis. Stat. § 302.114. Neither of these exceptions is applicable to this case.
      We note that the legislature recently enacted a limited right to seek sentence modification based on post-sentencing rehabilitation. The legislature has created a procedure, effective February 1, 2003, that permits an inmate to petition a sentencing court for sentence adjustment after serving 85% of the term of confinement for Class C to E felonies or after serving 75% of the term of confinement for Class F to I felonies. 2001 Wis. Act 109, § 1143m. One of the permissible grounds for a petition under this procedure is "[t]he inmate's conduct, efforts at and progress in rehabilitation, or participation and progress in education, treatment, or other correctional programs since he or she was sentenced." Id. Prisoners may petition for such sentence modification only once "for each sentence imposed under s. 973.01." Id.


author: ROGGENSACK, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Rodosvaldo C. Pozo, Defendant-Appellant.

    Court of Appeals

      No. 02-0127.

      Submitted on briefs May 13, 2002.

    Decided October 31, 2002.

    2002 WI App 279
    (Also reported in 654 N.W.2d 12.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Rodosvaldo C. Pozo, pro se.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sarah K. Larson, assistant attorney general.
    Before Dykman, Roggensack and Lundsten, JJ.

       Petition to review denied 1-21-03.

   ROGGENSACK, J.

¶ 1. Rodosvaldo Pozo appeals an order denying his petition for a writ of habeas corpus. His petition alleges that the information charging him with delivering cocaine as a second offense was legally insufficient and thus deprived the circuit court of subject matter jurisdiction. Pozo requests that we vacate his conviction and grant him additional relief in the sum of $1000 pursuant to Wis. Stat. § 782.09 (1999-2000). We conclude that Pozo's petition is without merit and therefore, we affirm the circuit court's order. In addition, because Pozo failed to develop any legal argument in support of his contention that § 782.09 entitles him to $1000, we decline to review the issue.

BACKGROUND

¶ 2. In August 1995, Pozo was convicted of delivering cocaine as a second offense, contrary to Wis. Stat. §§ 961.41(l)(cm)2 and 961.48, and possessing a schedule II controlled substance as a dealer without a tax stamp, contrary to Wis. Stat. § 139.95(2) (1995-1996). The court sentenced Pozo to twenty-five years for cocaine delivery and eight years consecutive for violating the tax stamp law. Pozo appealed, but he did not challenge the sufficiency of the information. We affirmed Pozo's convictions. In a 1996 motion for postcon-viction relief, Pozo asked the circuit court to vacate his tax stamp conviction because the evidence was insufficient and his trial counsel was ineffective. The circuit court denied Pozo's motion and he appealed. We affirmed the order and the supreme court denied Pozo's petition for review. Subsequently, however, the supreme court held the tax stamp statute unconstitutional and Pozo's tax stamp conviction was vacated in February of 1998.

¶ 3. Prior to having his tax stamp conviction vacated, on December 30, 1997, Pozo, pro se, filed a second postconviction motion that raised Fourth and Fifth Amendment issues, alleged double jeopardy and challenged the circuit court's jurisdiction. Pozo also challenged the circuit court's application of the repeater penalty, and he alleged ineffective assistance of counsel. In June of 1998, the circuit court summarily denied Pozo's motion because it raised only issues previously litigated. Pozo then filed a pro se petition for writ of habeas corpus based primarily on ineffective assistance of appellate counsel. We denied the petition and instructed Pozo that the proper avenue of relief was to appeal the circuit court's June 1998 order denying postconviction relief.

¶ 4. Pozo followed our direction and appealed the circuit court's denial of postconviction relief. We affirmed the circuit court's June 1998 order because Pozo did not demonstrate a sufficient reason for the court to review issues that could have been raised on direct appeal. Two years later, Pozo filed a motion for a new trial, which the circuit court denied.

¶ 5. On November 27, 2001, Pozo filed a second petition for writ of habeas corpus which is the subject of this appeal. The petition alleged that the circuit court lacked subject matter jurisdiction to convict him of the crimes alleged because the charging document was legally insufficient. The circuit court denied the petition because Pozo failed to assert any factual basis for relief. Pozo then petitioned the court of appeals for supervisory writ requesting that it compel the circuit court to address his petition on the merits. We denied the petition and instructed Pozo that the appropriate remedy was an appeal from the final order issued by the circuit court denying his petition for writ of habeas corpus. Pursuant to our instruction, Pozo appeals that denial.

DISCUSSION

Standard of Review.

¶ 6. A circuit court's order denying a petition for writ of habeas corpus presents a mixed question of fact and law. State ex rel. McMillian v. Dickey, 132 Wis. 2d 266, 276, 392 N.W.2d 453, 456 (Ct. App. 1986). Factual determinations will not be reversed unless clearly erroneous. Id. Whether writ of habeas corpus is available to the party seeking relief is a question of the law that we review de novo. See State ex rel. Woods v. Morgan, 224 Wis. 2d 534, 537, 591 N.W.2d 922, 924 (Ct. App. 1999).

. Writ of Habeas Corpus.

¶ 7. Pozo's petition for writ of habeas corpus alleges that the circuit court lacked subject matter jurisdiction because the information charging Pozo with delivering cocaine as a second offense was legally insufficient. Pozo claims that the information omitted three essential elements of the crime charged: (1) it did not allege a first offense, (2) it did not allege a person to whom the drugs were delivered and (3) it did not allege that a definite amount of drugs were delivered. Accordingly, Pozo requests that we vacate his conviction and grant him $1000 pursuant to Wis. Stat. § 782.09. We decline to do so.

¶ 8. Writ of habeas corpus is an equitable remedy that protects a person's right to personal liberty by freeing him or her from illegal confinement. State ex rel. Dowe v. Waukesha County Circuit Court, 184 Wis. 2d 724, 728-29, 516 N.W.2d 714, 715-16 (1994). It arises in common law and is guaranteed by the state and federal constitutions, as well as by statute. Because it is an extraordinary writ, habeas corpus relief is available only where the petitioner demonstrates: (1) restraint of his or her liberty, (2) which restraint was imposed contrary to constitutional protections or by a body lacking jurisdiction and (3) no other adequate remedy available at law. State ex rel. Haas v. McReynolds, 2002 WI 43, ¶ 12, 252 Wis. 2d 133, 643 N.W.2d 771. Habeas corpus is not a substitute for appeal and therefore, a writ will not be issued where the "petitioner has an otherwise adequate remedy that he or she may exercise to obtain the same relief." Id. at ¶ 14; see also State ex rel. Doxtater v. Murphy, 248 Wis. 593, 602, 22 N.W.2d 685, 689 (1946).

¶ 9. Wisconsin Stat. § 974.06(8) sets out the statutory provisions which explain the availability, or lack thereof, of writ of habeas corpus in postconviction proceedings. Section 974.06(8) provides in relevant part:

A petition for a writ of habeas corpus ... shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced the person, or that the court has denied the person relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his or her detention.

Additionally, in a postconviction setting, a petition for writ of habeas corpus will not be granted where (1) the petitioner asserts a claim that he or she could have raised during a prior appeal, but failed to do so, and offers no valid reason to excuse such failure, State ex rel. LeFebre v. Israel, 109 Wis. 2d 337, 342, 325 N.W.2d 899, 901 (1982), or (2) the petitioner asserts a claim that was previously litigated in a prior appeal or motion after verdict. State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512, 514 (Ct. App. 1991) ("A matter once litigated may not be relitigated in a subsequent post-conviction proceeding no matter how artfully the defendant may rephrase the issue.").

¶ 10. Applying the test set out in Haas, it is uncontested that Pozo's liberty is restrained. However, even if we were to assume, arguendo, that the facts he alleges are sufficient to support his claim that the restraint was imposed by a court that lacked jurisdiction, Pozo had an adequate remedy available to pursue this claim when he challenged his conviction on direct appeal. The same can be said for his contention that the repeater allegation was insufficiently stated and that the identity of the recipient of the drugs, as well as the amount of drugs delivered, were not stated in the information. All of those issues could have been raised on appeal, and would have been resolved then, but for Pozo's failure to assert them. Cf. State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 451-53, 593 N.W.2d 48, 50-51 (1999). And finally, Pozo has not provided a valid reason to excuse such failure nor has he alleged facts that would support the conclusion that the remedy of appeal would have been inadequate or ineffective to test the legality of his detention. Therefore, we conclude that a writ of habeas corpus is not available to Pozo, and we affirm the circuit court's order denying his petition.

Wisconsin Stat. § 782.09.

¶ 11. Pozo next asserts that he is entitled to $1000 pursuant to Wis. Stat. § 782.09 because the circuit court denied his petition for writ of habeas corpus. However, Pozo fails to develop any argument to support his claim. Therefore, we deem the issue abandoned and decline to address it. Reiman Assoc. v. R/A Advertising, Inc., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292, 294 n.1 (Ct. App. 1981); State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992) ("The Court of Appeals may decline to review issues inadequately briefed.").

CONCLUSION

¶ 12. We conclude that Pozo's petition for writ of habeas corpus is without merit. In addition, because Pozo failed to develop any legal argument in support of his contention that Wis. Stat. § 782.09 entitles him to $1000, we decline to review the issue.

By the Court. — Order affirmed.

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

       Wis. Const, art. I, § 8, cl. 4.

       U.S. Const, art. I, § 9, cl. 2.

       Wis. Stat. § 782.01.

       WISCONSIN Stat. § 974.06 was adopted to replace habeas corpus as the primary method by which a defendant could attack his or her conviction after the time for appeal had expired. State v. Escalona-Naranjo, 185 Wis. 2d 168, 176, 517 N.W.2d 157, 160 (1994).

       WISCONSIN Stat. § 782.09 provides that "[a]ny judge who refuses to grant a writ of habeas corpus, when legally applied for, is liable to the prisoner in the sum of $1000."


author: VERGERONT, PJ.

text:
    Town of Dunkirk, Plaintiff-Appellant, v. City of Stoughton, James L. Flynn, Linda J. Flynn, Elton M. Gunsolus, Luella M. Gunsolus, Alan E Larson, Doreen B. Larson, Randy W Olson, Donna L. Olson, Donald Olson, Roberta L. Peterson, Peter A. Sveum and Sveum Enterprises, Ltd., Defendants-Respondents.
    Court of Appeals

      No. 02-0166.

      Submitted on briefs October 11, 2002.

    Decided October 31, 2002.

    2002 WI App 280
    (Also reported in 654 N.W.2d 488.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Constance L. Anderson and Gregory D. Murray of Merg & Anderson, S.C., Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Stephen J. Liccione and Andrew W. Erlandson of Reinhart Boerner Van Deuren, S.C., Madison.
    Before Vergeront, PJ., Dykman and Lundsten, JJ.
   VERGERONT, PJ.

¶ 1. The Town of Dunkirk appeals the circuit court order dismissing its complaint challenging a petition for annexation filed by the City of Stoughton. The court concluded that it lacked personal jurisdiction over the City of Stoughton and the other named defendants because the initial summons and complaint had been signed by an attorney who at the time was suspended from the practice of law in Wisconsin. We agree with the circuit court that there was a defect in the initial summons and the initial complaint because both were signed by an attorney who was at the time suspended from the practice of law in Wisconsin. Applying Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 639 N.W.2d 715, we conclude that the defect was fundamental rather than technical. Assuming without deciding that the defect could be cured under Wis. Stat. § 802.05(1)(a) (1999-2000), we conclude it was not cured, because the Town of Dunkirk filed only an amended complaint with new counsel's signature; it never filed an amended or corrected summons. Accordingly, the circuit court correctly decided it had no personal jurisdiction over the City of Stoughton and other defendants. Therefore, we affirm the order dismissing this action.

BACKGROUND

¶ 2. The initial summons and complaint were filed on March 4, 2001, and signed by Michael Cassidy as attorney for the Town of Dunkirk. The complaint sought a declaratory ruling that the City of Stoughton's ordinance annexing land from the Town was invalid.

¶ 3. On June 22, 2001, the defendants moved to dismiss the summons and complaint, asserting that they were not signed by an attorney as required by Wis. Stat. § 802.05, and therefore there was no personal jurisdiction over the defendants. Accompanying the motion as an attachment to an affidavit was a letter from the State Bar of Wisconsin, stating that Michael Cassidy had been suspended from the practice of law in Wisconsin for non-compliance of mandatory continuing legal education credits on June 2, 1998, and had remained suspended since that date up to June 21, 2001, the date of the letter.

¶ 4. On August 1, 2001, the Town, through new counsel, filed an amended complaint that was signed by new counsel. The Town did not file or serve on the defendants an amended or corrected summons signed by new counsel. The defendants moved to dismiss the amended complaint, contending that the defect in the initial summons and complaint was fundamental and could not be cured, and, alternatively, it had not been properly cured. In opposition to this motion, the Town filed affidavits of the town chair and supervisor of the town board, averring that at the time the initial summons and complaint were filed, they did not know and had no reason to believe that Cassidy's law license was suspended.

¶ 5. After briefing and argument, the circuit court concluded that Cassidy's signature on the original summons and complaint was a fundamental defect and therefore the court had no personal jurisdiction over the defendants.

DISCUSSION

¶ 6. On appeal, the Town contends that under Schaefer v. Riegelman, 2002 WI 18, which was decided after the circuit court's order of dismissal, the signature defect in the original pleadings may be corrected, and that it was corrected. We agree with the Town that Schaefer provides the proper framework for our analysis, but we do not agree it provides support for the Town's position. Instead, we conclude that Schaefer requires dismissal of this action.

¶ 7. Whether pleadings meet the applicable statutory requirements is a question of law, which we review de novo. Schaefer, 2002 WI 18, ¶ 15. Whether a defect is fundamental or technical is also a question of law. Id. at ¶ 25.

¶ 8. An action is commenced by the filing of a summons and complaint, "provided service of an authenticated copy of the summons and ... of the corn-plaint... is made upon the defendant. . . within 90 days after filing." Wis. Stat. § 801.02(1). In order to obtain personal jurisdiction over a defendant, the defendant must be served with a summons as specified by statute. Wis. Stat. § 801.04(2)(a). If a defect in a pleading is fundamental, no personal jurisdiction exists regardless of whether or not there is prejudice; if the defect is technical, the court has personal jurisdiction if the non-pleading party has not been prejudiced. Schaefer, 2002 WI 18 at ¶ 14.

¶ 9. Wisconsin Stat. § 802.05(l)(a) provides:

Signing of pleadings, motions and other papers; sanctions. (l)(a) Every pleading, motion or other paper of a party represented by an attorney shall contain the name, state bar number, if any, telephone number, and address of the attorney and the name of the attorney's law firm, if any, and shall be subscribed with the handwritten signature of at least one attorney of record in the individual's name .... The signature of an attorney or party constitutes a certificate that the attorney or party has read the pleading, motion or other paper; that to the best of the attorney's or party's knowledge, information and belief, formed after reasonable inquiry, the pleading, motion or other paper is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that the pleading, motion or other paper is not used for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.

In addition, Wis. Stat. § 801.09(3) requires that the summons "shall be subscribed with the handwritten signature of the plaintiff or attorney."

¶ 10. In Schaefer, the summons and complaint were signed "Robert R. Weinstine (by J.A. Fishel)," which was handwritten by Fishel with Weinstine's knowledge and authorization. Both were attorneys in the same firm. Both were licensed to practice in Minnesota, but only Weinstine was licensed to practice in Wisconsin. 2002 WI 18 at ¶ 2.

¶ 11. The court in Schaefer first determined whether the pleadings were defective. The court concluded they were, because they did not contain the handwritten signature of an attorney of record who was licensed to practice in the State of Wisconsin in that attorney's own name. Schaefer, 2002 WI 18 at ¶¶ 17-19. The court then discussed whether Fishel and Weinstine were able to cure the defect under the provision in Wis. Stat. § 802.05(1)(a) that if a "pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant." Id. at ¶ 20-21. The court observed that the defect had been called to the plaintiffs attention more than eight months before the defendant brought the motion for dismissal, and that no attempt had been made to correct the defect within that time. Id. The court also stated that Fishel's pro hac vice admission did not cure the defect. Id. at ¶ 22. Finally, the court observed that the filing and service of the amended complaint did not cure the defect because it was simply a photocopy of the original. Id. at ¶ 24.

¶ 12. The court in Schaefer then took up the question whether the signature defect was fundamental or technical. Id. at ¶ 25. The court concluded that the defect was fundamental. Id. at ¶ 38. It reasoned that the subscription requirement "provided an essential protection for the people and business of the State to remain free from being sued frivolously or improperly — a protection that is at the core of an attorney's professional responsibility." Id. at ¶ 30. The subscription requirement also insured attorney accountability under the Wisconsin Rules of Professional Conduct. Id. at ¶¶ 29, 31. Minimizing the subscription requirement, the court concluded, would weaken the safeguard provided by Wis. Stat. § 802.05 and weaken attorney accountability. Id. at ¶¶ 30-31.

¶ 13. The Town does not dispute that its initial summons and complaint were defective because they were signed by an attorney who had been suspended from the practice of law in Wisconsin. The Town also appears to acknowledge that the court in Schaefer held that failure to comply with the attorney subscription requirement is a fundamental defect. However, the Town asserts that Schaefer allows the opportunity for correction of a subscription defect under Wis. Stat. § 802.05(1)(a), and, according to the Town, it promptly corrected the defect by filing the amended complaint. The defendants do not agree that Schaefer allows a fundamental defect to be corrected under § 802.05(1)(a), arguing that Schaefer's discussion of the corrective provision in § 802.05(1) was dicta, and also pointing out that the plain language applies only to pleadings, motions, or other papers that are "not signed." It is unnecessary for us to decide these issues concerning the corrective provision of § 802.05(1)(a) because, even if it were available to the Town, the Town did not correct the defect in the original summons.

¶ 14. The Town filed only an amended complaint signed by new counsel; it did not file or serve a summons signed by new counsel. Therefore, the defective subscription in the initial summons was not cured.

¶ 15. The Town's alternative argument asks us to recognize an exception to Schaefer on policy grounds. According to the Town, the reasons for the Schaefer court's conclusion that a subscription error is fundamental do not apply to an attorney, like Cassidy, who is licensed to practice law in Wisconsin but has been suspended from the practice of law. The Town asserts that, unlike the attorney in Schaefer, who was not licensed in Wisconsin, Cassidy can be held accountable because he is subject to the Wisconsin Rules of Professional Conduct while he is suspended. In addition, the Town argues, dismissal of its action will prevent it from ever challenging the annexation, and that is unfair because it did not know about its attorney's suspension.

¶ 16. We do not have the authority to recognize an exception to the supreme court's holding in Schaefer. See Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997). The Town's arguments that policy or other reasons support an exception must be directed to the supreme court. To the extent the Town is arguing that Schaefer's holding does not govern this case because of factual distinctions, we disagree.

¶ 17. In its decision, the court in Schaefer considered our opinion in Novak v. Phillips, 2001 WI App 156, ¶ 24, 246 Wis. 2d 673, 631 N.W.2d 635, in which we concluded that a rubber-stamped imprint of an attorney's signature was a technical defect because it could be corrected under Wis. Stat. § 802.05(1)(a). If it were a fundamental defect, we reasoned in Novak, "a plaintiff would not have the opportunity to avail himself or herself of this defect-correcting provision." Novak, 2001 WI App 156 at ¶ 24. The court in Schaefer declined to apply our reasoning in Novak and instead "overrule [d] Novak to the extent that the court of appeals held that the subscription defect was technical rather than fundamental." Schaefer, 2002 WI 18 at ¶ 33. The court stated: "To hold that a failure to meet the subscription requirement is merely technical jeopardizes judicial economy, erodes attorney accountability, and lessens the essential protection that the subscription requirement affords to defendants." Id.

¶ 18. If the rubber-stamped signature of an attorney of record, licensed to practice in the State of Wisconsin and in good standing in the State of Wisconsin, is a fundamental defect, we see no principled reason for concluding that the handwritten signature of an attorney of record who has been suspended from the practice of law is not also a fundamental defect. This is particularly the case since the court in Schaefer found the reasoning in Jadair Inc. v. United States Fire Insurance Co., 209 Wis. 2d 187, 562 N.W.2d 401 (1997), to be applicable and persuasive. In Jadair, the supreme court concluded that a fundamental defect existed when a non-lawyer signed a notice of appeal on behalf of a corporation. Id. at 212. The reasoning underpinning that decision — that "to allow this type of defect would be contrary to the legislative mandates of the procedural requirements and would evince this court's acceptance of the unauthorized practice of law," was, the Schaefer court concluded, applicable to the facts before it. Schaefer, 2002 WI 18 at ¶ 34. That reasoning is equally applicable here: treating Cassidy's signature as a technical defect would indicate an acceptance of practicing law in violation of an order of suspension.

¶ 19. Accordingly, we conclude Cassidy's signature on the initial summons and on the initial complaint was a fundamental defect because he was suspended from the practice of law in Wisconsin. We also conclude that, even if the defect could be cured under the corrective provision in Wis. Stat. § 802.05(l)(a), the Town did not cure the defect on the summons because it never filed and served a summons signed by new counsel. Therefore, the circuit court did not have personal jurisdiction over the defendants, and it properly dismissed this action.

By the Court. — Order affirmed.

       Besides the City of Stoughton, the complaint named a number of individuals and a business, alleging that each either had signed the petition for annexation or had a potential interest in the subject matter of the action.

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

       A challenge to an annexation ordinance must be filed within ninety days of the adoption of the ordinance. Wis. Stat. §§ 616.0217(11) and 893.73(12). The complaint alleged the ordinance was adopted on December 18, 2000.

       In Novak v. Phillips, 2001 WI App 156, ¶ 24, 246 Wis. 2d 673, 631 N.W.2d 635, before deciding if the defect was fundamental or technical, we concluded it was not properly corrected under Wis. Stat. § 802.05(1) (a) because it was not corrected until almost a year later and that was not "prompt." Id. at ¶ 14.