author: FINE, J. CURLEY, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. David Arredondo, Defendant-Appellant.

    Court of Appeals

      No. 02-2361-CR.

      Submitted on briefs November 4, 2003.

      Decided December 23, 2003.

    2004 WI App 7
    (Also reported in 674 N.W.2d 647.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of James Rebholz of Rebholz, Auberry & Malone, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sally L. Wellman, assistant attorney general.
    Before Wedemeyer, EJ., Fine and Curley, JJ.

       Petition to review denied 2-24-04.

   FINE, J.

¶ 1. David Arredondo appeals from a judgment entered on jury verdicts convicting him of first-degree intentional homicide and second-degree sexual assault, and from an order denying his postcon-viction motion for a new trial. See Wis. Stat. §§ 940.01(1), 940.225(2)(a). Arredondo claims that: (1) his constitutional right to testify was violated; (2) his trial counsel was ineffective; (3) the trial court erred when it denied his postconviction motion; (4) the sentencing court relied on an improper factor; and (5) his judgment should be vacated in the interest of justice. We affirm.

¶ 2. David Arredondo was charged with sexually assaulting and killing Desiree Klamann. According to witnesses, Klamann was last seen alive with Arredondo at the Cinco de Mayo festival on May 4, 1997. Her naked and beaten body was found wrapped in a comforter in a garbage dumpster on May 8,1997. The police discovered Arredondo's semen on the comforter and found Klamann's blood on the molding of Arredondo's bedroom. The police also saw that someone had recently painted half-way up the walls of Arredondo's bedroom. They sprayed luminol, a chemical designed to detect blood that is not otherwise visible to the unaided eye, on the walls and discovered blood underneath the paint.

¶ 3. Arredondo pled not guilty and went to trial.. The State called several witnesses, including Arredondo's former roommate, Thomas Garza. Garza testified that, on May 4, 1997, he got back to the apartment he shared with Arredondo around 9:30 or 9:45 p.m. While Garza was in the kitchen getting a drink, he saw Arredondo run naked from his bedroom to the bathroom. According to Garza, he laughed and asked Arredondo what was going on. Arredondo told Garza that he had to "take a leak" and could not wait. After Arredondo returned to his bedroom, Garza went to his own bedroom, watched television in bed, and fell asleep. Garza testified that he heard a woman's voice while he was sleeping, but was not sure where the voice came from because his television was still on.

¶ 4. The State also called as a witness Arredondo's former cellmate, Kurt Moederndorfer. Moederndorfer testified that, while he shared a cell with Arredondo at the Milwaukee County Jail, Arredondo told him about the crime. According to Moederndorfer, Arredondo met a woman at the Cinco de Mayo festival. Arredondo and the woman spent the day together drinking and having a "good time." Moederndorfer testified that Arredondo convinced the woman to go home with him, took her into his bedroom, and "tried to make his moves on her." Arredondo told Moederndorfer that, when the woman resisted, he grabbed her by the throat, choked her, and forced her to have sexual intercourse with him. When Moederndorfer asked Arredondo if the police had any evidence, Arredondo replied: " I took care of that.... I painted the walls in the bedroom and got rid of a mattress and some kind of old rug ... in a dumpster.'"

¶ 5. The State rested and the trial court had an on-the-record colloquy with Arredondo to determine if Arredondo wanted to testify. Arredondo's attorney told the trial court that Arredondo did not want to testify and that Arredondo's decision was "99 percent definite" pending the testimony of two defense witnesses. Arredondo then assured the trial court that he understood, and waived his right to testify.

¶ 6. After Arredondo's waiver of his right to testify, the defense called two men who lived in the apartment above Arredondo to testify about the night Klamann was killed. The defense rested and the trial court informed the jury that the evidentiary phase of the trial was complete, and dismissed it for lunch. After the lunch break, Arredondo told the court that he wanted to rescind his decision not to testify because he did not understand what rights he was giving up.

¶ 7. Arredondo's attorney told the court that, before he rested, he asked Arredondo if he wanted to testify and Arredondo confirmed that he did not. The trial court then asked the State about potential prejudice. The assistant district attorney told the court that its rebuttal witnesses had been released but that "they probably could... be relocated." The trial court concluded that Arredondo "was fully advised of his rights [and] made an informed, knowing and voluntary decision."

¶ 8. As noted, a jury found Arredondo guilty of first-degree intentional homicide and second-degree sexual assault. The trial court sentenced him to life in prison without parole on the homicide count and twenty years in prison on the sexual-assault count, consecutive to the homicide sentence.

¶ 9. Arredondo filed a postconviction motion for a new trial, alleging that his trial counsel was ineffective. The trial court held a hearing pursuant to State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). It limited the testimony at the Machner hearing to Arredondo, Arredondo's trial attorney, and the assistant district attorney who tried the case. The court did, however, accept and review all written submissions from the parties, including proffers of testimony and affidavits from the witnesses Arredondo wished to present. After considering all of the evidence, the trial court concluded that Arredondo's trial counsel was not ineffective.

A. Right to Testify

¶ 10. Arredondo claims that his constitutional rights were violated when the trial court declined to reopen the evidence to allow him to testify. He attacks the validity of the trial court's decision on several grounds. First, he alleges that the "totality of the record" does not show that he knowingly and voluntarily waived his right to testify. We disagree.

¶ 11. A defendant's right to testify is a fundamental constitutional right. State v. Simpson, 185 Wis. 2d 772, 778, 519 N.W.2d 662, 663 (Ct. App. 1994). A defendant may, however, waive the right to testify. State v. Wilson, 179 Wis. 2d 660, 670-672, 508 N.W.2d 44, 48 (Ct. App. 1993), overruled on other grounds by State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485. "The standard is whether the record demonstrates that the defendant knowingly and voluntarily waived the right." Simpson, 185 Wis. 2d at 778-779, 519 N.W.2d at 664.

¶ 12. A trial court's ruling on whether a waiver was knowing and voluntary presents mixed questions of fact and law. See Reckner v. Reckner, 105 Wis. 2d 425, 435, 314 N.W.2d 159, 164 (Ct. App. 1981). We will uphold the trial court's findings of fact unless they are clearly erroneous. State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830, 833 (1990). The application of the facts to the constitutional principles is a question of law that we review de novo. Id., 156 Wis. 2d at 137-138, 456 N.W.2d at 833.

¶ 13. We consider the totality of the record, including the record of the postconviction proceedings, in deciding whether Arredondo knowingly and voluntarily waived his right to testify. Simpson, 185 Wis. 2d at 779, 519 N.W.2d at 664. The trial court had the following colloquy with Arredondo and his attorney after the State rested:

THE COURT: It is my understanding the defendant has elected not to testify although [he] wants to reserve the right to change that after these two witnesses testify. Is that right?
[ARREDONDO'S ATTORNEY]: The defendant's elected not to testify, Your Honor.
THE COURT: And that's a definite decision?
[ARREDONDO'S ATTORNEY]: That's a definite decision. I would say 99 percent definite. I don't expect anything from these two witnesses that would change his mind, but you never know.
THE COURT: We can address it again after the witnesses testify, but let me just confirm with you,.. . that you have discussed the defendant's options with him in that regard.
[ARREDONDO'S ATTORNEY]: I have, Your Honor.
THE COURT: And Mr. Arredondo, I need to confirm with you that you have discussed your decision regarding testifying in this case with your counsel and the options that you have in that regard. You have done so?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You understand that you have an absolute constitutional right not to testify in this case, and if you decide, as evidently you have decided, not to testify in this case, the jury will be instructed that they cannot hold that against you. They cannot draw any conclusions from that. Do you understand?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you also understand, Mr. Arredondo, that you have a corresponding right to testify and take the witness stand in your own defense. If you do that, you would be subjecting yourself to cross-examination. Do you recognize that as well?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Knowing that you have these corresponding rights and how they apply here and in consultation with your counsel, you have made the decision not to testify in this case, correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And although that decision has been made in consultation with your counsel, it is, nonetheless, your own decision; is that correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT: All right. Let's proceed.

This exchange unequivocally demonstrates that Arredondo was aware of his right to testify, and discussed that right with his lawyer. See Weed, 2003 WI 85, ¶ 43, 263 Wis. 2d at 464, 666 N.W.2d at 499 (colloquy-should consist of inquiry to ensure that defendant was aware of his right to testify and discussed the right with counsel). Nonetheless, Arredondo alleges that his waiver was not valid because it was conditional. He claims that the trial court should have conducted another colloquy with him after the two defense witnesses testified to determine whether he still wanted not to testify. We do not agree.

¶ 14. As noted, Arredondo told the trial court that he wanted to rescind his waiver because he did not understand the rights he had waived. The trial court observed that:

[t]he record should reflect that I observed a conversation between attorney and client after the two defense witnesses testified which appeared to be a conversation concerning the defendant's previously made decision not to testify.... I need to confirm .. . that this is indeed what was occurring during that very brief off the record consultation between you and Mr. Arredondo before you rested your case. Is that correct?

Arredondo's attorney confirmed that, after the last defense witness had testified, he asked Arredondo if he still wanted to waive his right to testify. According to the attorney, Arredondo said: "I don't want to testify." The attorney also assured the trial court that he had explained the right to testify to Arredondo several times before and during the trial. The trial court concluded that Arredondo "made a knowing and voluntary and irrevocable decision not to testify in this case."

¶ 15. The next morning, before the case was given to the jury, Arredondo's attorney again told the court that he had conferred with Arredondo and confirmed that Arredondo did not want to testify. The trial court reaffirmed that Arredondo's waiver of his right to testify was knowing and voluntary:

I think the record should be very clear, to the extent it wasn't made clear yesterday, that I regard Mr. Arredondo's conduct yesterday afternoon on this issue of whether to testify or not to testify simply [as] another attempt to manipulate rather than any change of heart or any misunderstanding.
There is no support for your claim, Mr. Arredondo, that you misunderstood, and there is no support for your claim that you were doing what your attorney told you and not what you wanted to do. The record fully supports my conclusions in this regard. You told me directly and in an unequivocal fashion that you did not wish to testify.
The defendant was fully advised of his rights in this regard both by me and by his counsel. He was advised of the same rights in [a] prior trial.... He represented in the prior trial a full understanding of his rights to testify or not to testify in that matter. His attorney represented on the record in that matter that he fully understood his rights and options in that regard, and I am fully satisfied that the defendant understands what the situation was [and] made an informed, knowing and voluntary decision.

¶ 16. At the Machner hearing, Arredondo's attorney testified that Arredondo never told him before the defense rested that he wanted to testify. In contrast, Arredondo claimed that he told his attorney that he had to testify to prove his innocence. The postconviction court adopted the State's proposed finding that Arredondo told his attorney after the defense witnesses had testified that he still did not want to testify.

¶ 17. The determination of witness credibility is left to the trial court, Dejmal v. Merta, 95 Wis. 2d 141, 151-152, 289 N.W.2d 813, 818 (1980), and Arredondo has not shown that the trial court's findings are clearly erroneous. Under the facts here, a second on-the-record colloquy with Arredondo was not required. Based on the trial court's findings of fact, Arredondo knowingly and voluntarily waived his right to testify.

¶ 18. Second, Arredondo alleges that the trial court erroneously exercised its discretion when it refused to reopen the evidence to allow him to testify. Included in this allegation is his claim that the trial court misinterpreted the law when it concluded that Arredondo's waiver of his right to testify was "irrevocable." Again, we disagree.

¶ 19. "The right to testify must be exercised at the evidence-taking stage of trial." United States v. Jones, 880 F.2d 55, 59 (8th Cir. 1989). "Once the evidence has been closed, whether to reopen for submission of additional testimony is a matter left to the trial court's discretion." Ibid. A trial court must consider "whether the likely value of the defendant's testimony outweighs the potential for disruption or prejudice in the proceedings, and if so whether the defendant has a reasonable excuse for failing to present the testimony during his case-in-chief." United States v. Peterson, 233 F.3d 101, 106 (1st Cir. 2000).

¶ 20. In this case, the trial court considered the potential for prejudice. Arredondo made his request after the trial court told the jury that the evidence-taking stage of the trial was complete, and after the State dismissed its rebuttal witnesses. The trial court determined that "substantial prejudice . . . would exist to the state and the system and the sequestered jury in order to reopen the case at this time." As noted, the trial court also found that Arredondo voluntarily gave up his right to testify. Moreover, the trial court found that Arredondo was engaging in "theatrics and . .. playing for the cameras, perhaps, and that this is a gross attempt to manipulate the system."

¶ 21. "[T]he need for order and fairness in criminal trials is sufficient to justify firm, though not always inflexible, rules limiting the right to testify." Jones, 880 F.2d at 59. Under the circumstances, we see no infringement of Arredondo's constitutional right to testify. Further, it is clear from the context of the trial court's statements that the trial court did not mean that Arredondo's decision to waive his right to testify was irrevocable as a matter of law. Rather, it determined that it should not re-open based on what it believed was Arredondo's "attempt to manipulate the system." The trial court did not erroneously exercise its discretion in not re-opening the evidence.

B. Ineffective Assistance of Trial Counsel

¶ 22. Arredondo also contends that his trial lawyer was ineffective. His challenges fit into three main categories, and we will discuss each category. Any sub-issue mentioned by Arredondo in his briefs and not discussed in this opinion was inadequately briefed. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147, 151 (1978) ("An appellate court is not a performing bear, required to dance to each and every tune played on an appeal."); State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992) (appellate court may "decline to review issues inadequately briefed").

¶ 23. Arredondo's ineffective-assistance claims overlap his claim that the postconviction court's findings of fact on his ineffective-assistance-of-counsel claims were clearly erroneous and unsupported by either the law or the record. For the reasons discussed below, there is no merit to Arredondo's ineffective-assistance-of-counsel claims. Thus, the postconviction court did not err when it denied his postconviction motion.

¶ 24. In order to establish ineffective assistance of counsel, a defendant must prove: (1) deficient performance; and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, a defendant must show specific acts or omissions of counsel that are "outside the wide range of professionally competent assistance." Id., 466 U.S. at 690. There is a "strong presumption that counsel acted reasonably within professional norms." State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845, 848 (1990).

¶ 25. To prove prejudice, a defendant must show that the lawyer's errors were so serious that the defendant was deprived of a fair trial and a reliable outcome. Strickland, 466 U.S. at 687. In order to succeed, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 466 U.S. at 694.

¶ 26. Our standard for reviewing an ineffective-assistance-of-counsel claim involves mixed questions of law and fact. Johnson, 153 Wis. 2d at 127, 449 N.W.2d at 848. Findings of fact will not be disturbed unless clearly erroneous. Ibid. Legal conclusions, however, as to whether counsel's performance was deficient and prejudicial, present questions of law. Id., 153 Wis. 2d at 128, 449 N.W.2d at 848. Finally, we need not address both Strickland prongs if the defendant fails to make a sufficient showing on either one. Strickland, 466 U.S. at 697.

1. Right to Testify

¶ 27. Arredondo argues that his trial lawyer was ineffective for advising him not to testify. We disagree. At the Machner hearing, Arredondo's attorney testified that he advised Arredondo not to testify for two main, albeit related, reasons. First, the lawyer testified that he believed Arredondo would make a poor witness because Arredondo told him inconsistent details about the night Klamann was killed, and that he would be discredited on cross-examination because he told the police inconsistent things. Second, Arredondo's attorney testified that if Arredondo testified he believed that an incriminating statement Arredondo gave to a detective that had been suppressed prior to trial would have been admissible to impeach Arredondo. See Harris v. New York, 401 U.S. 222, 225-226 (1971) (statements obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), can be used for impeachment purposes). This strategy was professionally reasonable. See State v. Felton, 110 Wis. 2d 485, 502-503, 329 N.W.2d 161, 169 (1983) (we will uphold counsel's strategic decision if it was rationally based on the facts of the case and the law).

¶ 28. Arredondo also contends that his trial lawyer did not represent him effectively during his attempt to revoke his decision not to testify. Arredondo alleges that his attorney's performance was deficient because his attorney failed to: confirm with him that he did not want to testify; assert Arredondo's alleged right to a second on-the-record colloquy; and advocate for his right to testify. We disagree.

¶ 29. The record shows that Arredondo's attorney properly responded to Arredondo's attempted revocation. First, as noted, both the trial court and the postconviction court found that before Arredondo's attorney rested he confirmed with Arredondo that Arredondo did not want to testify. Second, the failure of Arredondo's lawyer to seek a second on-the-record colloquy was not prejudicial under Strickland because a second colloquy was not required. Finally, the trial court found that Arredondo's belated desire to testify was an attempt to manipulate the system — that Arredondo lied to the court when he told it that he did not understand his right to testify. Arredondo's attorney was not required to help Arredondo pursue that "strategy." See Nix v. Whiteside, 475 U.S. 157, 168-169 (1986) (attorney's duty to prevent fraud upon the court).

2. Defense Strategy

¶ 30. Arredondo also makes a series of claims that challenge his trial lawyer's defense strategy. First, he contends that his trial lawyer was ineffective because he failed to investigate, present, and argue his "only meritorious defense," which, he claims, was that Garza, Arredondo's roommate, murdered Klamann. At the Machner hearing, Arredondo's attorney testified that he chose not to argue that Garza was the only person who could have killed Klamann because there was no direct evidence linking Garza to the murder. Instead, he claimed that his trial strategy was to show that someone other than Arredondo killed Klamann:

The defense strategy in a nutshell was that Mr. Arredondo was at the Cinco de Mayo Festival on the south side that year. He had met Ms. Klamann at the festival. They had apparently become friendly. If I recall right, they left the festival together. I believe it was in a cab, and I think they stopped at — it was at his mother's or a friend's or relative's or something.
There wasn't a dispute that they were together. They actually wound up at his place. They had consensual sex. They had consensual sex, and he had then left. They had consensual, rough sex, that was the distinction, rough sex. He had then left after Thomas Garza gave him some money to go out and get some drugs or something like that.

¶ 31. A trial attorney may select a particular defense from the available alternative defenses. Felton, 110 Wis. 2d at 501-502, 329 N.W.2d at 169. We will uphold the strategic decision, even if it appears in hindsight that another defense would have been more effective, as long as the decision is rationally based on the facts of the case and the applicable law. Id., 110 Wis. 2d at 502-503, 329 N.W.2d at 169.

¶ 32. It was reasonable for Arredondo's attorney to present the general defense that a third person could have killed Klamann. There was little, if any, evidence linking Garza to the crime. Thus, it is unlikely that a jury would have found that Garza committed it. Under the theory of defense advanced by Arredondo's lawyer, however, the jury was free to reject the theory that Garza did it, but could still have found that someone other than Arredondo was responsible for the murder. The fact that this strategy failed does not make the attorney's representation deficient. See State v. Roller, 87 Wis. 2d 253, 264, 274 N.W.2d 651, 657 (1979).

¶ 33. Second, Arredondo claims that his trial attorney failed to impeach Garza's testimony with false statements Garza made to the police. This claim fails on both the deficiency and prejudice prongs. Arredondo cannot show prejudice because Garza admitted on direct-examination that he lied to the police:

Q. Mr. Garza, when the police first talked to you about this you did not tell them the truth; is that correct?
A. When they first approached me it was on, it was on a Friday night. At that point I did not know who they were looking for. They did not tell me they were looking for David. They just showed me some pictures and I did not recognize him from those pictures. They asked me if I had a roommate and knowing in the past police were harassing David and I because we are roommates,... I didn't think that he was related to that person that they found, the victim, so I told them that I didn't have no [sic] roommate.
Q. So you lied to the police ?
A. Yes.
Q. You're also trying to protect him?
A. I had a false sense of family loyalty. His mother is the Godmother to my sister and I always try to help his mother in every way I can.

(Emphasis added.)

¶ 34. Moreover, Arredondo's attorney adequately cross-examined Garza:

Q. Do you recall speaking to — Do you recall speaking to Detective[s] Gary Schuster and William Jessup on May 9, 1997? Those are the first detectives that made contact with you?
A. Yes.
Q. You told them, it's your testimony today you say that you just didn't recognize David's picture; correct?
A. Right.

Arredondo's attorney also cross-examined Garza about Garza's statement to the police that he heard a woman ask "where is my money, where is my money," after which he heard Arredondo say "shhh." Garza admitted that he was not "100 percent" sure where the woman's voice was coming from, but that he did hear something. The jury was well aware that Garza lied to the police.

¶ 35. Third, Arredondo alleges that his attorney failed to locate and present the testimony of Joe Quiles, an alleged alibi witness. Arredondo claims that Quiles would have testified that he saw Arredondo alone at Angelo's Tavern around 9:00 or 10:00 p.m. on May 4, 1997. He contends that this testimony would have bolstered his defense that Klamann was alive when he left his apartment. Again, we disagree.

¶ 36. At the Machner hearing, Arredondo's attorney testified that he did not call Quiles to testify at trial because his personal investigator could not locate him. Arredondo alleges that this claim is belied by a postcon-viction proffer of testimony from his brother, Raymond Arredondo. We disagree. Raymond Arredondo's proffer provides, as relevant:

Prior to trial, Ray Arredondo talked to Joe Quilles [sic] and told him that David's trial attorney or investigator would be contacting him about his testimony because Mr. Quilles [sic] was at Angelo's with David Arredondo at about 9:00 or 10:00 o'clock on the evening of May 4, 1997.

Arredondo points us to nothing in the record that enables us to conclude that Quiles was capable of being produced. The proffer does not state that Raymond Arredondo told his brother's attorney or the investigator where Quiles lived or where he could be found. Without more, the proffer is insufficient to overcome the strong presumption that Arredondo's counsel acted reasonably.

¶ 37. Fourth, Arredondo alleges that his trial lawyer was ineffective because he did not cross-examine Arredondo's former cellmate, Kurt Moederndorfer, on the full extent of the consideration he received for testifying at Arredondo's trial. This claim also lacks merit.

¶ 38. In an unrelated case, Moederndorfer pled guilty to possession of marijuana with the intent to deliver. On direct-examination in this case, Moedern-dorfer testified that the State dropped an habitual criminal penalty enhancer from the marijuana charge and told the sentencing judge about Moederndorfer's cooperation in this case. According to Moederndorfer, the trial court in his case sentenced him to nineteen months in prison on the marijuana charge, concurrent to a parole violation. Moederndorfer thus told the jury that he received consideration for his testimony. There was no need for Arredondo's trial lawyer to elicit this information again on cross-examination and Arredondo was not prejudiced by his failure to do so.

¶ 39. Arredondo also claims that his trial lawyer should have impeached Moederndorfer about a sentence-modification motion Moederndorfer filed several months after Arredondo's trial, which claimed that Moederndorfer's safety in prison was jeopardized by his testimony. This claim also lacks merit because Arredondo does not explain how his attorney could have cross-examined Moederndorfer about something that had not yet happened.

¶ 40. Arredondo further alleges that his attorney failed to investigate parole-revocation proceedings, which would have revealed that Moederndorfer allegedly lied to Moederndorfer's parole agent concerning some matter other than the facts of this case. He claims that his attorney should have used the testimony of Moederndorfer's parole agent to impeach Moederndorfer's character for truthfulness. Arredondo does not elaborate, however, on what the parole agent would have said if called to testify. When a defendant claims that trial counsel was deficient for failing to present testimony, the defendant must allege with specificity what the particular witness would have said if called to testify. See State v. Flynn, 190 Wis. 2d 31, 48, 527 N.W.2d 343, 349-350 (Ct. App. 1994). Arredondo has failed to provide the requisite specificity.

¶ 41. Fifth, Arredondo claims that his trial lawyer "acquiesced" to allegedly inculpatory testimony of a forensic odontologist, who testified about bite marks on Klamann. Again, we disagree. At trial, Lowell T. Johnson, M.D., testified that human bite marks on Klamann's breast were consistent with Arredondo's bite mark. He opined that the bite marks occurred "at or near the time of death, but there is no way to specifically put a matter of time frame on it."

¶ 42. Arredondo contends that this testimony was inconsistent with his defense because it implied that he was with Klamann when she died. The record shows, however, that Arredondo's attorney did not "acquiesce" to this testimony as Arredondo suggests. On cross-examination, Arredondo's attorney elicited from Dr. Johnson that he could not "put a time frame" on the bite marks:

Q. Thank you, doctor. Can you give a reasonable opinion .. . [on] what you feel would be a reasonable range of hours for the perimortem marks here?
A. No, sir.
Q. Would they have been as much as an hour before death?
A. There is no way of telling clinically that I'm aware of, counselor, to put a time frame on it. Even from the histological thing, I think the pathologists will tell you that they may be able to give you a little closer approximation, but even then, it's an approximation, and I don't know there is any way of ascertaining exactly the time that it occurred.

¶ 43. Arredondo claims that his attorney's cross-examination of Dr. Johnson was insufficient, however, because the attorney did not cross-examine Dr. Johnson with the allegedly inconsistent testimony of Virginia J. Greenbaum, a medical examiner. At trial, Dr. Green-baum testified that it was "very difficult to tell" if all of Klamann's injuries had occurred before Klamann died. She agreed with the prosecutor that Klamann's injuries occurred before or around the time Klamann died. Based on this testimony, Arredondo's attorney was not ineffective for failing to impeach Dr. Johnson with Dr. Greenbaum's opinions. Her testimony about the timing of the injuries, including the bite marks, was consistent with Dr. Johnson's testimony that he could not specifically tell when the bite marks were made.

¶ 44. Arredondo also claims that his attorney should have objected to Dr. Johnson's testimony because the attorney was "surprised" by it. Arredondo does not point us to any evidence, however, to show that his trial attorney was unaware that Dr. Johnson was going to testify or what he was going to testify about. Indeed, Arredondo's attorney effectively cross-examined Dr. Johnson about the bite marks. There is no indication that Arredondo's attorney was surprised by Dr. Johnson's testimony.

3. Other-Acts Evidence

¶ 45. At Arredondo's trial, Kim S. testified about Arredondo's alleged sexual assault of her in 1995. Arredondo was tried and acquitted on that charge in 1996. At Arredondo's homicide trial, Kim S. testified that on June 15, 1995, Arredondo and Peter Cefalu came to her apartment after she had a fight with her boyfriend, Matthew Ade. According to Kim S., Arredondo knocked her down after Cefalu left, choked her, and threatened her with a knife. She testified that Arredondo then forced her to go into her bedroom where he sexually assaulted her.

¶ 46. Arredondo contends that his attorney should have called Cefalu and Ade, both of whom testified at the sexual-assault trial, to testify in this case. He alleges that their testimony would have impeached Kim S.'s testimony that Arredondo assaulted her. Arredondo was not prejudiced by his attorney's failure to present this testimony.

¶ 47. The transcript of the sexual-assault trial is in the record on this appeal. Cefalu was Arredondo's roommate and lived in the same building as Kim S. when Arredondo allegedly sexually assaulted her. He testified that around 2:30 a.m. he saw a group of men with Kim S. in the parking lot of the building. According to Cefalu, one of the men from the parking lot knocked on his apartment door around 4:00 or 4:30 a.m. Cefalu testified that the man told him that:

they were up there having a beer, drinking or whatever, and some fight ensued and he said, you know, he was pretty drunk, it was hard for me to really understand what he was saying, but he said something to the effect like, well, this is real sick what happened and she's got her top ripped open and he said you know Matt fights with his girlfriend but it's never like this, something to that effect, and I said, you know, hey, I didn't have anything to do with this, I wasn't up there.

Ade testified that he got into a fight with Kim S. and left her at a bar. When he went to her apartment later that night, he found Kim S. with Arredondo and a man whom he thought was "Peter." Ade testified that he argued with Kim S. and left to go out with friends. According to Ade, Kim S. called him a few hours later and he went over to her apartment. When he arrived, Kim S. told him that Arredondo assaulted her.

¶ 48. One of the prerequisites to the admission of other-acts evidence is that a reasonable jury could find by a preponderance of the evidence that the defendant committed the other act. State v. Landrum, 191 Wis. 2d 107, 117, 528 N.W.2d 36, 41 (Ct. App. 1995). Here, despite the prior acquittal, a jury could reasonably conclude by a preponderance of the evidence that Arredondo sexually assaulted Kim S. based on Kim S.'s testimony. There is nothing in either Cefalu's or Ade's testimony that would have directly impeached Kim S.'s version of the sexual assault. Accordingly, Arredondo fails to show that but for his counsel's failure to present this testimony, his trial was unfair.

¶ 49. Arredondo further claims that his trial lawyer should have moved to admit pursuant to Wis. Stat. Rule 908.045(1) (declarant unavailable) the transcript of Arredondo's testimony at the 1995 sexual-assault trial. Arredondo contends that the trial court would have been "required" to admit his prior testimony because the other-acts evidence placed him in the "constitutionally untenable" position of either testifying in the homicide trial about the Kim S. assault and opening himself to cross-examination or foregoing the opportunity to rebut Kim S.'s testimony. We disagree. The criminal process is replete with situations requiring " 'the making of difficult judgments'" concerning tensions between constitutional rights. State v. Hall, 103 Wis. 2d 125, 148, 307 N.W.2d 289, 299-300 (1981) (quoted source omitted). It is not unconstitutional to require a defendant to choose between testifying or remaining silent even though that choice affects other criminal charges. See ibid. Arredondo has failed to prove that his trial lawyer provided ineffective assistance.

C. Postconviction Evidence

¶ 50. Next, Arredondo alleges that the postconviction court erroneously exercised its discretion when it "refus[ed] to admit or consider" the testimony of Arredondo's witnesses at the Machner hearing. We disagree. While the postconviction court purported to limit the evidence Arredondo could present at the Machner hearing, it actually accepted and considered all written submissions from the parties, including Arredondo's witness affidavits and proffers of testimony. " 'A circuit court has broad discretion in determining the relevance and admissibility of proffered evidence.'" State v. Oberlander, 149 Wis. 2d 132, 140, 438 N.W.2d 580, 583 (1989) (quoted source omitted). Arredondo does not show how the court erroneously exercised its discretion. See, e.g., United States v. Delker, 757 F.2d 1390, 1396 (3d Cir. 1985) (court has discretion to accept evidence by live testimony or proffer at bail hearing).

D. Sentencing

¶ 51. Arredondo also argues that the sentencing court improperly considered his alleged sexual assault of Kim S. We disagree.

¶ 52. Sentencing is vested in the trial court's discretion, and a defendant who challenges a sentence has the burden to show that it was unreasonable; it is presumed that the trial court acted reasonably. State v. Lechner, 217 Wis. 2d 392, 418, 576 N.W.2d 912, 925 (1998). There is "a 'strong public policy against interference with the sentencing discretion of the trial court and sentences are afforded the presumption that the trial court acted reasonably.'" State v. Echols, 175 Wis. 2d 653, 681-682, 499 N.W.2d 631, 640 (1993) (quoted source omitted).

¶ 53. The three primary factors a sentencing court must consider are the gravity of the offense, the character of the defendant, and the need to protect the public. State v. Harris, 119 Wis. 2d 612, 623, 350 N.W.2d 633, 639 (1984). Here, the trial court considered Kim S.'s testimony about the alleged sexual assault:

As far as [your] background is concerned, Mr. Arredondo .. . there is the sexual assault matter that I have already made reference to involving Kim S[.] that you stood trial on before me in that case some two years ago and were acquitted. And as I've already indicated, that verdict must be accepted but that does not compel me to agree with it. And I think it is absolutely fair for me to consider what I heard in that case which was repeated in this case when Ms. S[.] was given permission to testify as a victim of a prior act on your part as being relevant to it. She went through her pain as well, and I think it is fair for me to consider that as well.

(Emphasis added.) Arredondo claims that the trial court improperly considered the sexual-assault evidence because it "simply replac[ed] the jury's acquittal conclusion with its own." This argument ignores the well-recognized distinction between the fact-finder's function at the guilt stage, where the fact-finder must determine whether the government has proved a defendant's guilt beyond a reasonable doubt, and the sentencing judge's role, which is to assess the defendant's character using all available information, unconstrained by the rules of evidence that govern the guilt-phase of a criminal proceeding. See Williams v. New York, 337 U.S. 241, 246-247 (1949) (evidentiary rules that limit what a jury may consider in determining whether the government has proven a defendant guilty beyond a reasonable doubt do not so circumscribe a sentencing court).

¶ 54. It is " 'well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted.'" United States v. Watts, 519 U.S. 148, 152 (1997) (per curiam) (quoted source omitted, emphasis added); see also State v. Marhal, 172 Wis. 2d 491, 501-503, 493 N.W.2d 758, 763-764 (Ct. App. 1992) ("Information upon which a trial court bases a sentencing-decision, as opposed to a finding of guilt, need not, of course, be established beyond a reasonable doubt." Thus, "a sentencing court may consider conduct for which the defendant has been acquitted."); State v. Bobbitt, 178 Wis. 2d 11, 16-18, 503 N.W.2d 11, 14-15 (Ct. App. 1993) (recognizing validity of rule stated in Marhal).

¶ 55. As we have seen, the trial court "accepted" the jury's verdict in Arredondo's other case. But it also properly considered the facts underlying that case in gauging Arredondo's character. See State v. Leitner, 2001 WI App 172, ¶ 44, 247 Wis. 2d 195, 214, 633 N.W.2d 207, 216, aff'd, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341 (court may consider factual circumstances related to offenses for which the defendant has been acquitted). Simply put, the trial court did not, as the Dissent asserts, " 'replace a jury's conclusion with its own,'" Dissent at ¶ 60 (quoting Bobbitt, 178 Wis. 2d at 18, 503 N.W.2d at 15); rather, it properly considered Kim S.'s testimony as it reflected on what kind of a person Arredondo was and is. There was no error.

E. Interest of Justice

¶ 56. Finally, Arredondo asks this court to order a new trial in the interest of justice because, he claims, the real controversy was not fully tried. He argues that the cumulative effect of the errors we discussed above support his claim. Since we have rejected all of Arredondo's alleged arguments, we decline to order a new trial. See Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 752, 758 (1976) ("Zero plus zero equals zero.").

By the Court. — Judgment and order affirmed.

CURLEY, J.

¶ 57. (concurring in part; dissenting in part). I concur in the majority's- conclusions in all matters except Arredondo's sentencing claim. Although I believe the admission of Kim S.'s testimony as "other acts" evidence was unwise, as Arredondo had been acquitted for those actions, I recognize that current law permits such a practice. However, I disagree with the majority opinion's holding that the trial court properly considered the allegations of the earlier case at sentencing.

¶ 58. The majority opinion cites State v. Bobbitt, 178 Wis. 2d 11, 503 N.W.2d 11 (Ct. App. 1993), and State v. Leitner, 2001 WI App 172, 247 Wis. 2d 195, 633 N.W.2d 207, aff'd, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, as authority for the sentencing court to consider Arredondo's alleged assault of Kim S. in sentencing him in this case. Neither of the cases are factually on point.

¶ 59. In Leitner, the question arose as to whether a sentencing court could use earlier expunged convictions when sentencing a defendant for a newly-committed crime and whether all records documenting the behavior underlying an expunged conviction should be destroyed. The supreme court determined that the expungement statute does not require the destruction of the records, and the trial court is free to consider the underlying facts of the expunged conviction at sentencing. 247 Wis. 2d 195, ¶¶ 47, 49.

¶ 60. In Bobbitt, the accused was found guilty of robbery and false imprisonment, but acquitted of the charge of attempted first-degree intentional homicide after a jury trial. All three charges involved the same victim, who testified at trial. Despite the acquittal on the one count, at sentencing, the trial court considered the alleged violence associated with the attempted homicide charge as an aggravating circumstance justifying a departure from the sentencing guidelines. The accused appealed, claiming that the acts of violence all dealt with the acquitted charge and, therefore, the trial court improperly substituted its opinion for that of the jury when it considered the violent acts as a factor at sentencing. This court determined that, under those circumstances, it was proper for the trial court to adopt the victim's version of the events for sentencing purposes, even though the jury did not convict on the third charge. The Bobbitt court cautioned, however, that a "court may not sentence according to its desire to replace a jury's conclusion with its own." 178 Wis. 2d at 18. To do so would "offend the fundamental principles of fairness and due process." Id.

¶ 61. Here, the trial court, the same court that presided over Arredondo's earlier acquittal, appears to have sentenced Arredondo based on its conclusions regarding the earlier case. The trial court stated:

And we are all to be thankful to the police department for that work because without that, you would be getting off the hook in this case as I believe you got off the hook unfairly and unjustly in the previous case having to do with Kate [sic] [S.] And I am absolutely convinced that that verdict in that case was wrong. And while we must accept it because it was the result of a proper trial and it was the jury's prerogative to issue that verdict, that does not mean we have to agree with it. And I did not and do not agree with it.

Paying lip service to the prohibition against replacing the jury's decision with its own, the trial court later remarked:

And as I've already indicated, that verdict must be accepted but that does not compel me to agree with it. And I think it is absolutely fair for me to consider what I heard in that case which was repeated in this case when Ms. S. was given permission to testify as a victim of a prior act on your part as being relevant to it. She went through her pain as well and I think it is fair for me to consider that as well.

¶ 62. Clearly, the trial court's sentencing comments show that Arredondo was also being sentenced for the earlier charge on which he was acquitted. This is impermissible and "offend[s] the fundamental principles of fairness and due process." See Bobbitt, 178 Wis. 2d at 18. Thus, I would remand for resentencing.

       The Honorable Diane S. Sykes presided over the trial and entered the judgment of conviction. The Honorable M. Joseph Donald presided over the postconviction hearing and issued the order denying Arredondo's postconviction motion.

       Arredondo did not present any evidence from which the trial court could evaluate the likely value of his testimony. He simply told the court that he wanted to testify because "the only one that can defend David Arredondo is David Arredondo." We presume that the trial court determined that Arredondo did not adequately explain what he would have said if allowed to testify. See State v. Echols, 175 Wis. 2d 653, 673, 499 N.W.2d 631, 636 (1993) (generally, when a trial court fails to make an express finding to support its conclusion, we may assume the trial court made the finding in a way that supports its decision).

       Arredondo does not argue that his trial lawyer was ineffective in connection with any of the other factors that a trial court must consider before admitting evidence of other acts. See Wis. Stat. Rule 904.04(2); State v. Sullivan, 216 Wis. 2d 768, 772-773, 576 N.W.2d 30, 32-33 (1998).

       Arredondo also argues that he was prejudiced by the aggregate of his trial attorney's alleged errors. As noted, Arredondo's ineffective-assistance claims fail on the merits. That ends our inquiry. See State v. Thiel, 2003 WI 111, ¶ 61, 264 Wis. 2d 571, 606, 665 N.W.2d 305, 322-323 ("each act or omission must fall below an objective standard of reasonableness ... in order to be included in the calculus for prejudice").


source: Caselaw Access Project

author: SCHUDSON, J. WEDEMEYER, EJ.

license: Public Domain

text:
    Wisconsin Bell, Inc., (d/b/a Ameritech Wisconsin), a Wisconsin corporation, Petitioner-Respondent-Cross-Appellant, v. Public Service Commission of Wisconsin, Respondent-Appellant-Cross-Respondent, Sprint Telecommunications, Inc., Excel Telecommunications, Inc., and AT&T Communications of Wisconsin L.P., Co-Appellants-Cross-Respondents.
    Court of Appeals

      No. 02-3163.

      Oral argument October 7, 2003.

      Decided December 23, 2003.

    2004 WI App 8
    (Also reported in 675 N.W.2d 242.)

      On behalf of the respondent-appellant-cross-respondent, the cause was submitted on the briefs of Diane M. Ramthun and Steven Levine, assistant general counsels of The Public Service Commission of Wisconsin.
    On behalf of the co-appellants-cross-respondent, the cause was submitted on the combined briefs of Peter L. Gordon, Stephen J. Liccione, and Ryan J. Owens of
      Reinhart, Boerner, Van Deuren, S.C., of Madison, Wisconsin, and Arthur J. LeVasseur of Fischer, Franklin & Ford, of Detroit, Michigan.
    On behalf of the petitioner-respondent-cross-appellant, the cause was submitted on the briefs of Linda M. Clifford, Jennifer L. Peterson of LaFollette, Godfrey & Kahn, of Madison.
    Before Wedemeyer, RJ., Fine and Schudson, JJ.

       Petition to review granted 4-20-04.

   SCHUDSON, J.

¶ 1. The Public Service Commission of Wisconsin, Sprint Telecommunications, Inc., Excel Telecommunications, Inc., and AT&T Communications of Wisconsin, L.E, appeal from the circuit court order reversing the Commission's order granting Sprint's, Excel's, and AT&T's request for a revenue refund from Wisconsin Bell, Inc., d/b/a Ameritech Wisconsin (n/k/a "SBC Wisconsin"; referred to as "Amer-itech" in this opinion). The court concluded that while the Commission had correctly determined that the Ameritech long-distance charges that had generated that revenue were unlawful, the requested refund was foreclosed by Wis. Stat. § 196.37(2) (2001-02). Amer-itech cross-appeals from the same circuit court order affirming the Commission's determination that the underlying long-distance charges were unlawful.

¶ 2. We conclude that the circuit court correctly affirmed the Commission's determination that the Ameritech charges were unlawful. We also conclude, however, that the court incorrectly reversed the Commission's order granting the requested refund of the unlawful revenue. Accordingly, on the appeal we reverse, and on the cross-appeal we affirm.

I. BACKGROUND

A. Introduction

¶ 3. To say that the factual background can seem complicated is like saying that pasta can be filling. Reviewing the record, reading the briefs, and listening to oral argument, the author of this opinion often felt like the hungry but uncertain traveler who, sitting down to indulge in fine Italian cuisine for the first time, loosens his belt but wonders whether he must untangle the linguini before eating it.

¶ 4. Fortunately, however, our digestion is eased because the parties at least agree on most of what happened here. In the cross-appeal, for example, the Commission responds that, in general, it "takes no issue with the background and statement of facts set forth by Ameritech," even adding that much of Ameritech's summary serves as "an exhaustive and helpful explanation for the court of a complex area of telecommunications regulation." Thus, in our effort to accurately state the technical aspects of this case, we rely heavily on the parties' presentations and, in our effort to clarify, we set aside many of the acronym-loaded details choking this case.

¶ 5. In the last decade or so, few Americans have escaped the chaotic, consumer-unfriendly complications spawned by the deregulation of the telecommunications industry. As many companies compete to satisfy consumers and produce profits, they struggle to sort out the remaining rules and regulations, as well as new ones. Navigating their way with considerable uncertainty, the industry and government have formulated various price-setting and regulatory approaches. The issues in this appeal and cross-appeal come from Wisconsin's approach.

¶ 6. Specifically, the parties' primary dispute derives from their differing understandings of what constitutes compliance with Wis. Stat. § 196.196(2)(b)3, which provides: "After eliminating intrastate carrier common line charges, the telecommunications utility may not reinstate an intrastate carrier common line charge or a substitute charge." In this case, therefore, the primary issue is whether the "presubscribed inter-exchange carrier charge" (PICC) Ameritech charged was a prohibited "substitute" for the former "carrier common line charge" (CCLC).

B. Access Charges

¶ 7. On July 5, 1994, the Wisconsin legislature enacted 1993 Wisconsin Act 496, which included Wis. Stat. § 196.196, titled, "Telecommunications utility price regulation." 1993 Wis. Act 496, § 76. That statute, in part, allows telecommunications companies the option of accepting a modified form of pricing known as "price cap regulation." Ameritech elected this option on September 1, 1994 — the statute's effective date — and, by doing so, accepted various restrictions, including limitations on "access" charges.

¶ 8. Access charges are the charges telecommunications carriers and, derivatively, their customers pay the primary local telephone company to tap into its network for long distance calling service. See Wis. Stat. § 196.01 (lb). In this case, the local exchange carriers are Sprint, Excel, and AT&T; the company providing the network is Ameritech.

¶ 9. Access charges on long distance calls from one state to another are "interstate access charges," and are regulated by the Federal Communications Commission. See MCI Telecomms. Corp. v. State, 203 Wis. 2d 392, 397, 553 N.W.2d 284 (Ct. App. 1996) ("The Federal Communications Commission has exclusive regulatory jurisdiction over interstate telecommunications."), aff'd, 209 Wis. 2d 310, 562 N.W.2d 594 (1997). Access charges on long distance calls within one state are "intrastate access charges," and are regulated by state laws. See id. at 398 (The Commission "regulates the intrastate activities of telecommunications utilities in Wisconsin."). In a practice known as "mirroring,” states may set intrastate access charges based on interstate access charges. Wisconsin does so, with exceptions, under Wis. Stat. § 196.196(2)(b). That intrastate access rate, part of which consists of the "carrier common line charge" (CCLC), see Wis. Stat. § 196.196(2)(b)l, is, according to the parties, "at the core of this case." But what, exactly, surrounds that core? To identify that, we need to understand what Ameritech did following the Federal Communications Commission's revision of the interstate access charge rate structure.

¶ 10. Ameritech, having elected to operate under "price cap regulation," was required, by Wis. Stat. § 196.196(2)(b)2, to "eliminate intrastate carrier common line charges," and was prohibited, under § 196.196(2)(b)3, from "reinstat[ing] an intrastate carrier common line charge or a substitute charge." Amer-itech complied by eliminating the intrastate carrier common line charges, denominated as such. But in 1997, the FCC revised the interstate access charge rate structure and created the "presubscribed interexchange carrier charge" (PICC). Ameritech explains: Ameritech answers that it "chose the only logical option: It mirrored the new federal rate structure but, on the intrastate side, it lowered one rate element — the PICC — to account for the forgone CCLC revenues." Ameritech maintains that its "implementation of the PICC in its intrastate rate structure" did not violate § 196.196(2)(b)3.

Among other things, the FCC's new access charge rate structure eliminated the previous CCLC and created a new rate element, the presubscribed interexchange carrier charge ("PICC"). Under Act 496's concept of mirroring, a question arose: How could [Ameritech] "mirror" the new federal access charge rate structure while preserving the state-required elimination of the old CCLC?

¶ 11. The Commission disagreed. In its November 16, 2001 decision, the Commission concluded that Ameritech's assessment of the federal PICC constituted a prohibited "substitute charge" for the carrier common line charge, under Wis. Stat. § 196.196(2)(b)3. The Commission ordered Ameritech to refund the approximate $18,000,000 it had collected through the PICC charges during the previous four years.

¶ 12. Ameritech gained judicial review under Wis. Stat. ch. 227 and, on August 27, 2002, the circuit court affirmed the Commission's conclusion that Ameritech had assessed an unlawful "substitute charge," thus leading to Ameritech's cross-appeal. The court, however, reversed the Commission's refund order, thus leading to the appeal by the Commission and Sprint, Excel, and AT&T, the companies to which the refunds would have been paid. .

¶ 13. Did the Commission reasonably conclude that Ameritech's implementation of the PICC in its intrastate rate structure amounted to a substitute charge for the carrier common line charge? And, if so, did the Commission correctly order Ameritech to refund the revenue generated by the PICC?

II. AMERITECH'S CROSS-APPEAL

¶ 14. Logically, we begin with the cross-appeal. If we agree with Ameritech's argument that the Commission erred in concluding that the challenged long-distance charges were unlawful, the issue of the appeal —whether the law forecloses a revenue refund— evaporates. If not, we go on to decide the appeal in order to determine whether, contrary to the circuit court's conclusion, the Commission correctly ordered the refund.

¶ 15. We start, therefore, by considering whether the Commission correctly determined that Ameritech, "[a]fter eliminating intrastate carrier common line charges," see Wis. Stat. § 196.196(2)(b)3, violated the statute by "reinstat[ing] ... a substitute charge," see id., through its implementation of the federal PICC. Our consideration requires review of the Commission's interpretation of what constitutes a "substitute charge" under § 196.196(2) (b)3, and its application of that statute to the facts of this case.

A. Standard of Review

¶ 16. We review the decision of the Commission, not that of the circuit court. Richland Sch. Dist. v. DILHR, 166 Wis. 2d 262, 273, 479 N.W.2d 579 (Ct. App. 1991). In this case, the parties vigorously debate the degree of deference due the Commission's determination. Ameritech argues that because this regulatory scheme was a relatively new one, and because the Commission had not previously addressed the question of what constitutes a "substitute charge," the Commission's decision is due no deference. The Commission responds, however, that although the precise statutory question is novel, the regulatory framework is not; that because it has had extensive experience interpreting and applying the rules regulating the telecommunications industry, its determination should be given great weight. The Commission is correct.

¶ 17. An agency's application of a statute to a particular set of facts is due great-weight deference if: (1) the legislature has given the agency the duty to administer the statute; (2) the agency's interpretation is one of long-standing; (3) the agency employed its expertise or specialized knowledge in interpreting and applying the statute; and (4) the agency's interpretation will provide uniformity and consistency in applying the statute. Citizens' Util. Bd. v. Public Serv. Comm'n, 211 Wis. 2d 537, 550-51, 565 N.W.2d 554 (Ct. App. 1997). Here, clearly, the first, third and fourth criteria are satisfied; only the "long-standing" criterion causes us pause. The case law suggests, however, that that "longstanding" language, standing alone, may be a bit misleading.

¶ 18. To determine whether great-weight deference is due, the test "is not. .. whether the commission has ruled on the precise — or even substantially similar —facts in prior cases." Barron Elec. Coop. v. Public Serv. Comm'n, 212 Wis. 2d 752, 764, 569 N.W.2d 726 (Ct. App. 1997). Were that required, in cases involving the Public Service Commission, great-weight deference "would indeed be a rarity." Id. Thus, in this case, because the Commission was called upon to consider a novel situation created by the exact manner in which Ameritech had dealt with the federal PICC, its interpretation, perforce, could not be "of long-standing." See Citizens' Util. Bd., 211 Wis. 2d at 551-52. But certainly the mere fact that a regulated company may devise a new pricing method must not automatically reduce the deference due the regulating agency. After all, it is an agency's experience with related rules and similar circumstances that equips it to evaluate new facts and evolving regulatory systems.

¶ 19. If any doubt on this point remained, we erased it, explaining, in Citizens' Utilities Bd., that although the Commission's determination was "unique to [that] case, the agency's practice and methods of evaluating" issues of a similar nature were of "longstanding," thus supporting great-weight deference. Id. at 552. See also Virginia Sur. Co. v. LIRC, 2002 WI App 277, ¶ 13, 258 Wis. 2d 665, 654 N.W.2d 306 ("[Although the Commission has never decided a case presenting the precise facts raised by this appeal, that is not a prerequisite to giving the agency great-weight deference."), review denied, 2003 WI 16, 259 Wis. 2d 102, 657 N.W.2d 707 (Feb. 19, 2003) (No. 02-0031); William Wrigley Jr., Co. v. DOR, 176 Wis. 2d 795, 801, 500 N.W.2d 667 (1993).

¶ 20. "[T]he key in determining what, if any, deference courts are to pay to an administrative agency's interpretation of a statute is the agency's experience in administering the particular statutory scheme." Barron Elec. Coop., 212 Wis. 2d at 764. Here, as the Commission points out, its experience is extensive. Both before and after deregulation, the Commission has been responsible for regulating the telecommunications industry in Wisconsin. To carry out its responsibility, the Commission, for many years, has utilized its expertise and specialized knowledge. Since 1984, when Amer-itech was created following AT&T's breakup, the Commission has administered the system of access charges. And since 1993, the Commission has administered the provisions of ch. 196 governing competitive practices.

¶ 21. Moreover, the legislature, with the enactment of ch. 196, granted the Commission extensive authority to address the details of what, exactly, constitutes "a reasonable and just charge" for telecommunications services. See Wis. Stat. § 196.03(6). Here and elsewhere in the chapter, see, e.g., Wis. Stat. §§ 196.195, 196.199, and 196.219, the delegation of fact-finding authority and discretionary decision making to the Commission is evident.

¶ 22. The legislature, having paved the regulatory road, and having granted the Commission extensive authority to utilize its experience and expertise in finding facts and applying the statutes, certainly did not want that authority undermined by courts re-routing the traffic. We, after all, are not unlike many consumers who encounter difficulties deciphering their own phone bills. Without being facetious, we can be humble enough, in a case like this one, to respect that an agency, far better than a court, has the experience, expertise, and fact-finding opportunity that allow for fair and consistent decision making in areas of complex regulation. Brown v. LIRC, 2003 WI 142, ¶¶ 13, 19, 267 Wis. 2d 31, 671 N.W.2d 279 ("The appropriate level of scrutiny. . . depends on the comparative institutional capabilities and qualifications of the court and the agency to make a legal determination on a particular issue."). The Commission, no doubt, will be presented with many new questions as consumers and the telecommunications industry travel their new road. In these circumstances, it simply would make no sense to accord anything less than great-weight deference.

B. Analysis

¶ 23. Giving great-weight deference to the Commission's determination, we must affirm if the decision was reasonable; and we must do so even if, in our estimation, an alternative interpretation may be equally or even more reasonable. Barron Elec. Coop., 212 Wis. 2d at 761. "The agency's decision may be set aside by a reviewing court only when, upon an examination of the entire record, the evidence, including the inferences therefrom, is such that a reasonable person, acting reasonably, could not have reached the decision from the evidence and its inferences." Sterlingworth Condo. Ass'n v. DNR, 205 Wis. 2d 710, 727, 556 N.W.2d 791 (Ct. App. 1996) (citation omitted). Here, while conceding that some of Ameritech's theories "are reasonable and might be persuasive... at the agency level," the Commission correctly contends that they do not trump the evidence supporting its conclusion that the PICC, as implemented by Ameritech, constituted a substitute for the CCLC.

¶ 24. Evidence established that the PICC is a rate element assessed against carriers for access services. An Ameritech witness, J. Thomas O'Brien, testified that Ameritech's implementation of the PICC was a rate recovery mechanism related to Ameritech's access service costs. He confirmed, therefore, that, quite understandably, the PICC charge "appears under the carrier common line section in [Ameritech's] tariff."

¶ 25. Lending further support to the Commission's conclusion, evidence also established that Ameritech implemented the PICC based on common line revenues formerly associated with the CCLC charges and, therefore, that Ameritech's mirroring of the interstate PICC at the intrastate rate constituted a substitute charge. For example, Dennis L. Ricca, an Excel witness, explained: "This is shown in every PICC filing made with the FCC to date by Ameritech. Ameritech's . . . filing in its Description and Justification makes clear that every penny of the revenue requirement for the interstate PICC in Wisconsin is made up of common line costs." He concluded, therefore, that Ameritech's PICC was "clearly a substitute for the carrier common line charge."

¶ 26. The Commission agreed. See Sterlingworth Condo. Ass'n, 205 Wis. 2d at 727 (Commission is responsible for determining credibility of witnesses and weight of evidence). The Commission found that "Ameritech's intrastate PICC is a flat carrier common line charge or substitute carrier common line charge." The Commission concluded that both the PICC and CCLC were designed to recover common line costs and simply did so in different ways — CCLC on a minutes-of-use basis; PICC on a per-line flat charge basis. Either way, the Commission explained, the charges collected "access revenue through what was meant to be nonrecoverable carrier common line charges in Wisconsin." Thus, the Commission concluded that Ameritech, in implementing the PICC in an apparent attempt to mirror an interstate common line rate element at the intrastate level, had sought to generate revende and gain competitive advantage in a manner prohibited by Wis. Stat. § 196.196(2)(b)3.

¶ 27. Clearly, based on the evidence, the Commission could reasonably reach that conclusion. In fact, much of what at first might seem to be in controversy is beyond dispute. Ameritech does not deny that the PICC is a rate element designed to recover costs associated with the common line. Indeed, Ameritech's own tariff describes its PICC as a flat monthly charge applied to each end user's common line. And Ameritech does not dispute that it must not implement the PICC as a method to recover revenues it agreed to relinquish by opting into price cap regulation.

¶ 28. Ameritech maintains, however, that the Commission failed to recognize what it deems the significant difference between intrastate carrier common line charges and costs. Quite reasonably, however, the Commission dismisses such semantic subtleties and responds that the statutory prohibition of a "substitute charge" necessarily calls for a case-by-case determination of whether the assessment of certain "costs" constitutes such a "charge." As the Commission explained, "To say that the PICC is allowable because it is not the CCLC is to render the clear legislative intent of [§ 196.196(2)(b)3], and its prohibition against substitute carrier common line charge[s], meaningless." We agree. The very concept of a "substitute" charge necessarily envisions flexibility in application. After all, "substitute" means "that which stands in the place of another; that which stands in lieu of something else." See Black's Law Dictionary 1429 (6th ed. 1990).

¶ 29. Indeed, at oral argument before this court, counsel for Ameritech, acknowledging the chameleon-like nature of costs and charges, could not avoid a critical concession. First disputing the Commission's conclusion that the PICC recovered common line revenues, he contended that no common line carrier charges "reappear" in the PICC. He later commented, however, that the PICC "is a common line charge," and then asserted, "That's true, but it also covers other costs as well." Clearly, the fact that the PICC also covered other costs does not defeat the Commission's conclusion that it was a substitute charge.

¶ 30. Nevertheless, Ameritech protests that its implementation of the PICC was "revenue neutral"— i.e., that its "total intrastate access charge revenues remained the same both before and after it implemented the new, FCC-mandated access charge rate structure" for interstate access. Thus, Ameritech maintains, its PICC implementation did not violate Wis. Stat. § 196.196(2)(b)3. We disagree.

¶ 31. Whether, ultimately, Ameritech's PICC implementation was revenue neutral lies beyond any analysis needed here; as the Commission points out, revenue neutrality really does not matter. The Commission explains:

The purpose of access reform is to eliminate implicit subsidies historically contained in access charges, which are a barrier to competition, and reduce the charges paid by the [interexchange carriers]. Hence, not only is the concept of "revenue neutrality" irrelevant, given that other access rate elements have been reduced, the focus on revenue neutrality clearly suggests that Ameritech is seeking to recover costs that it surrendered when it elected price regulation.

¶ 32. And as Ameritech so carefully explains, "setting access charges in the telecommunications industry has never been based on strict cost causation principles," and the FCC's development of the PICC "was not based on cost causation." Thus, as Ameritech recognizes, "To the extent that the federal interstate access charge rate structure was not developed through strict cost causation principles, neither was Wisconsin's."

¶ 33. Therefore, by explaining that "[i]n setting the respective rates among the various classes of ratepayers, the regulator is not bound by cost causation," Ameritech also helps us understand that neither profit, nor loss, nor revenue neutrality is the pivot point on which this issue turns. Precisely because, as Ameritech so carefully advises, "[c]ost allocation and whether charges should directly follow costs remains only one part of access charge rate setting," revenue neutrality is not determinative. And precisely because, as Amer-itech so emphatically elaborates, "[cjompeting public policy considerations, not related to cost, also go into access charge rate-setting," the determination of whether an access charge is a "substitute" charge does not necessarily vary according to the endless, linguini loops linking Ameritech's costs and charges.

¶ 34. Ameritech, in its brief to this court, acknowledges that "[n]o accurate way exists to allocate 'common' or 'shared' costs of the local network between and among various [carriers] and end users that use the local network to start and end long distance calls." Then, significantly, Ameritech concedes that "[t]he allocation of common costs, therefore, is largely influenced by one's perspective and by policy considerations." If that is so, on what logical or legal basis could we reject the Commission's call — a call that necessarily involved its best effort to determine what Ameritech concedes, perhaps cannot be accurately determined, and a call that inevitably involved its perspective and policy considerations?

¶ 35. "[T]he reviewing court must examine the record for substantial evidence which supports the agency's conclusion." Knight v. LIRC, 220 Wis. 2d 137, 149-50, 582 N.W.2d 448 (Ct. App. 1998). Here, the evidentiary record, largely undisputed, offers ample support for the Commission's conclusion that Amer-itech reinstated an intrastate carrier common line charge in the form of the PICC, thus constituting a "substitute charge" in violation of Wis. Stat. § I96.l96(2)(b)3.

III. THE APPELLANTS' APPEAL

¶ 36. The appellants challenge the circuit court's reversal of the Commission's order that Ameritech refund the approximately $18,000,000 gained from its improper charges. The circuit court concluded that, under Wis. Stat. § 196.37(2), the Commission had exceeded its authority. The statute provides:

If the commission finds that any measurement, regulation, practice, act or service is unjust, unreasonable, insufficient, preferential, unjustly discriminatory or otherwise unreasonable or unlawful, or that any service is inadequate, or that any service which reasonably can be demanded cannot be obtained, the commission shall determine and make any just and reasonable order relating to a measurement, regulation, practice, act or service to be furnished, imposed, observed and followed in the future.

Wis. Stat. § 196.37(2) (emphasis added).

¶ 37. Here, again, we first encounter the parties' dispute over the standard of review. But essentially the same dispute was settled years ago and, unquestionably, the case law establishes that our review of this issue is de novo.

¶ 38. In GTE North, Inc. v. Public Service Comm'n, 176 Wis. 2d 559, 500 N.W.2d 284 (1993), the supreme court, determining whether the Commission had authority to order a refund, under § 196.37(2), of "compensation collected ... in violation of [the utility's] filed tariffs," id. at 562, concluded that "[decisions of an agency which deal with the scope of the agency's own power are not binding" and, accordingly, applied de novo review, id. at 564. In Wisconsin Power & Light Co. v. Public Service Comm'n, 181 Wis. 2d 385, 511 N.W.2d 291 (1994), the supreme court, determining whether the Commission had authority to order a "lump sum penalty based on [the utility's] past imprudent management" and to order a "refund [of] validly collected revenue," id. at 388, 392, concluded that "courts owe no deference to an agency's determination concerning its own statutory authority," id. at 392. And in CenturyTel of the Midwest-Kendall, Inc. v. Public Service Comm'n, 2002 WI App 236, 257 Wis. 2d 837, 653 N.W.2d 130, review dismissed, 2003 WI 1, 258 Wis. 2d 111, 655 N.W.2d 130 (Nov. 12, 2002) (No. 02-0053), we recently concluded that in reviewing "the authority of the [Commission] to order refunds [under Wis. Stat. § 196.37(2)], we will employ a de novo standard of review," id., ¶ 25. Thus, unlike situations where we give varying degrees of deference to an administrative agency's substantive decisions, we give no deference to the Commission's determination of its own authority.

¶ 39. In this case, the circuit court, reversing the Commission, concluded that because Wis. Stat. § 196.37(2) provides for remedial measures to be "followed in the future," the Commission had no authority to order the refund. Reaching that conclusion, however, the circuit court did not have the benefit of this court's decision in CenturyTel, decided two days later. Clearly, under CenturyTel, the Commission could order the refund.

¶ 40. In CenturyTel, the Commission concluded that CenturyTel, a telecommunications company, had increased rates without the required filing, hearing, and approval, in violation of Wis. Stat. § 196.20(2m) and, therefore, had violated the filed-rate requirements of Wis. Stat. § 196.22. CenturyTel, 257 Wis. 2d 837, ¶ 1. Under these circumstances, the Commission also concluded, a refund of the revenue generated by the increased rates did not constitute retroactive ratemak-ing under Wis. Stat. § 196.37(2). Id., ¶ 38.

¶ 41. In CenturyTel, relying heavily on the analysis in GTE North, we explained that "[o]rdering a refund of rates previously authorized by the [Commission], whether on an interim or permanent basis, violates the rule against retroactive ratemaking." Id., ¶ 32 (emphasis added). At the same time, however, we emphasized that where the Commission has not made a final order authorizing rates, see id., and where the Commission determines that "past charges, practices, acts or services . . . have been unlawful," see id., ¶ 36, the words "in the future," under Wis. Stat. § 196.37(2), "could not be construed as a limitation on the [Commission's] authority" to order a refund, see id.

¶ 42. We conclude that CenturyTel controls. Here, as in CenturyTel, the Commission did not order the revision of approved, lawful rates. Rather, having concluded that the PICC charges were unlawful, it ordered a refund of the resulting revenue.

¶ 43. Vigorously disputing the Commission's conclusion, Ameritech points to the Commission staffs initial acceptance of its charges, see n.6 above. As Ameritech confirmed at oral argument, however, it is not arguing any theory based on estoppel, laches, or reliance. Still, understandably, Ameritech questions the fairness of the refund, given the staffs action. Interestingly enough, however, the fact of the staffs initial acceptance actually carries this case remarkably close to the circumstances in CenturyTel.

¶ 44. In CenturyTel, Commission staff, in correspondence responding to CenturyTel's submission of a modified rate schedule, expressed its acceptance " 'with the understanding that it does not result in an unauthorized rate increase or service restriction.'" Id., ¶ 5 (citation omitted). Subsequently, however, competitors of CenturyTel complained that the rate modification constituted an unlawful rate increase for which a hearing and Commission approval would have been required. Id., ¶ 6. Following a subsequent hearing, the Commission concluded that because its staff had erred in accepting the rate modification, "it would be unjust to impose a penalty" on CenturyTel. Id., ¶ 9. The Commission also concluded, however, that while a penalty would be unjust, a refund, with interest, would be fair. Id.

¶ 45. Here, as in CenturyTel, the utility argues that the Commission, through its staffs correspondence, "approved the filing of the new rates without a hearing." Id., ¶ 17. Here, however, the Commission never "approved." As in CenturyTel, the staffs acceptance was "apparently based on information" offered only by the utility. Id., ¶ 20. Here, as in CenturyTel "there was no hearing on the new access rates and the [Commission] did not issue an order approving them." Id., ¶ 17. Here, as in CenturyTel, a hearing only came after complaints from competitors. Id., ¶¶ 6-7. Here, as in CenturyTel, the Commission only reached its conclusion on the lawfulness of the tariff following that hearing. Id., ¶¶ 8-9.

¶ 46. Thus, in the instant case, we conclude that the staff determination in 1997 did not preclude the Commission's conclusion following Ameritech's attempt to amend its exception tariff in 1998. And here, consistent with CenturyTel, notwithstanding the staff's correspondence (and even assuming, as in CenturyTel, that the staff may have erred), we conclude that the refund does not violate Wis. Stat. § 196.37(2). See id., ¶ 36.

¶ 47. Ameritech argues, however, that CenturyTel is significantly distinguishable because it involved a rate-of-return company, not a price cap company. Amer-itech maintains, therefore, that CenturyTel's conclusions are anchored in its determination that Century-Tel had failed to properly file its rates. See id., ¶ 22. Moreover, Ameritech maintains that, unlike Century-Tel, it properly filed its rate request. The argument is interesting, but unavailing.

¶ 48. While the distinction Ameritech draws is accurate, it is less significant than the common bonds between the two cases. Whether a company is rate-of-return or price cap, and whether its charges are "rates" or "tariffs," the charges must be lawful. And whether a question of lawfulness is posed during a rate review or a tariff challenge, the Commission has authority to determine the lawfulness of the charge.

¶ 49. Regardless of whether the utility is rate-of-return or price cap, CenturyTel clarifies that Wis. Stat. § 196.37(1) addresses, in part, the reasonableness of rates and charges, but § 196.37(2), by contrast, addresses, in part, the lawfulness of "any measurement, regulation, practice, act or service." Once a rate (by virtue of its improper filing and lack of approval, as in CenturyTel) is determined to be unlawful, or once a charge (by virtue of its improper substitution, as in the instant case) is determined to be a practice that is unlawful, it is subject to the remedial authority of § 196.37(2). Under CenturyTel, § 196.37(2) provides the Commission authority to order a refund.

¶ 50. Therefore, we really are not addressing any issue involving the filed-rate doctrine, see Wis. Stat. § 196.22, except to say that Ameritech, through its implementation of the PICC, effectively altered its "rate" — its access charges — in an unlawful manner. And, in the same sense, we really are not addressing any issue involving retroactive- ratemaking except to say that, under these circumstances, a refund does not make or re-make "rates." The refund simply corrects an unlawful charge.

¶ 51. If, however, one views this case through the filed-rate-doctrine lens, the conclusion is equally clear. As the supreme court explained: "Under the filed rate doctrine, codified in sec. 196.22, Stats., a utility must charge the rate that it files with the commission and that the commission approves. If a utility charges its customers a higher rate, the [commission] may order the utility to refund its excess revenue." Wisconsin Power & Light, 181 Wis. 2d at 396. Thus, in Wisconsin Power & Light, because the Commission had ordered a refund of "validly collected revenue" through a rate the Commission had approved years earlier, id. at 392, the lump sum penalty it ordered (which was "derived. . . directly from the actual overcharges" resulting from the utility's imprudent administration of a coal contract), violated the rule against retroactive ratemaking, id. at 393, 390. Here, by contrast, the Commission was not dealing with "validly collected revenue," id. at 392, and, therefore, it had the authority to "order the utility to refund its excess revenue." Id. at 396.

¶ 52. As the supreme court emphasized, Wis. Stat. § 196.37(2) "is a remedial statute and it must therefore be liberally construed to effect as reasonably as possible its beneficent purpose." GTE North, 176 Wis. 2d at 569. And, in CenturyTel, with words that would require only modest modification for exact application here, we concluded:

[T]he plain language of Wis. Stat. § 196.37(2) is broad enough to authorize the refund order in this case. The [Commission] determined [the company's] "act" of increasing rates was "unlawful".... The court in GTE North concluded that the "in the future" language in § 196.37(2) was not a limitation on the [Commission's] authority to order a refund in that case, and that the refund order was authorized because it was "a just and reasonable order regarding a 'measurement, regulation, act, practice, or service.'" We see no basis on which to conclude that the refund order in this case is not also authorized by § 196.37(2). Given the desirability of strict enforcement of the filed-rate statute, which the court in GTE North recognized, we see no significant difference between charging a rate that the utility believes is included in a tariff but the [Commission] concludes is not, as in GTE North, and charging a rate that the utility believes was properly filed with the [Commission] but the [Commission] concludes was not.

CenturyTel, 257 Wis. 2d 837, ¶ 42 (citation omitted).

¶ 53. And this makes sense. As the Commission argues, if it lacked the authority to order the refund in this case, "a price cap utility would have a strong incentive to impose illegal charges, because it could keep ill-gotten revenues." That, the Commission correctly explains, inevitably would result in "harm to consumers, both carriers and the public, in the form of increased rates, undesirable subsidies and lessened competition," thus defeating the legislative effort to provide for a competitive telecommunications market.

¶ 54. Accordingly, while we affirm the circuit court's order affirming the Commission's decision that Ameritech's charges were unlawful, we reverse the order to the extent that it reversed the Commission's decision that Ameritech refund the unlawful charges.

By the Court — Order affirmed in part; reversed in part and cause remanded.

WEDEMEYER, EJ.

¶ 55. (concurring in part; dissenting in part). I concur with the Majority's conclusion in part II B of this opinion — the Commission reasonably concluded that Ameritech's long-distance charges constituted a "substitute charge" for the carrier common line charge and, therefore, were unlawful under Wis. Stat. § 196.196(2)(b)3 (2001-02). I disagree, however, with the Majority's reversal of the circuit court's decision that refunds were not authorized. Accordingly, I must respectfully dissent from part III of the majority opinion.

¶ 56. I agree with the circuit court that the Commission does not have the authority to order Ameritech to refund approximately $18,000,000 gained from the unlawful charges. The circuit court based this decision on the language of Wis. Stat. § 196.37(1) (2001-02) which prohibits retroactive ratemaking. It provides:

If, after an investigation under this chapter or ch. 197, the commission finds rates, tolls, charges, schedules or joint rates to he unjust, unreasonable, insufficient or unjustly discriminatory or preferential or otherwise unreasonable or unlawful, the commission shall determine and order reasonable rates, tolls, charges, schedules or joint rates to be imposed, observed and followed in the future.

(Emphasis added.) Wisconsin Stat. § 196.37(2) (2001-02) offers similar prospective-only language:

If the commission finds that any measurement, regulation, practice, act or service is unjust, unreasonable, insufficient, preferential, unjustly discriminatory or otherwise unreasonable or unlawful, or that any service is inadequate, or that any service which reasonably can be demanded cannot be obtained, the commission shall determine and make any just and reasonable order relating to a measurement, regulation, practice, act or service to be furnished, imposed, observed and followed in the future.

(Emphasis added.) This language, in plain terms, sets forth the time sequence for corrective measures: the Commission is not authorized to engage in retroactive ratemaking, but may adjust rates prospectively only. The case law is consistent with this interpretation. See Kimberly-Clark Corp. v. Public Serv. Comm'n, 110 Wis. 2d 455, 461-62, 329 N.W.2d 143 (1983) (the PSC has only those powers which are expressly conferred or necessarily implied by the statutes). "No provision in ch. 196, Stats., expressly authorizes the commission to order a utility to refund money to its customers when the utility may have acted imprudently." Wisconsin Power & Light Co. v. Public Serv. Comm'n, 181 Wis. 2d 385, 392, 511 N.W.2d 291 (1994). The rule against retroactive ratemaking is "firmly ensconced in Wisconsin law." Id. at 393. Moreover, if any doubt exists as to an implied power that may exist, that doubt "should be resolved against the exercise of such authority." Kimberly-Clark Corp., 110 Wis. 2d at 462.

¶ 57. There are certain exceptions to the prohibition against retroactive ratemaking, wherein refunds are allowed under very narrow circumstances. See Wisconsin Power & Light Co., 181 Wis. 2d at 393 (Commission may order a utility to set future rates high enough to recoup past "extraordinary losses."); GTE North, Inc. v. Public Serv. Comm'n, 176 Wis. 2d 559, 500 N.W.2d 284 (1993) (refunds may be ordered when the utility collected rates in violation of the filed tariffs, "filed-rate doctrine exception"); CenturyTel of the Midwest-Kendall, Inc. v. Public Serv. Comm'n, 2002 WI App 236, 257 Wis. 2d 837, 653 N.W.2d 130 (refunds may be ordered when utility increases rates without complying with tariff filing requirements).

¶ 58. None of these exceptions, however, apply to the instant case. Here, Ameritech followed the proper procedures for filing its tariffs. It did not charge more than what the filed tariffs permitted. The majority concludes that the CenturyTel case controls and allows the refund. I disagree.

¶ 59. In my opinion, CenturyTel is distinguishable from the instant case. In CenturyTel, the utility failed to comply with the procedural requirements regarding access rate increases. Id., ¶ 8. The PSC concluded that the utility had violated the filed rate statute by charging access rates that were not properly filed pursuant to statute. Id., ¶ 10. Hence, the filed-rate-doctrine exception to the prohibition against retroactive ratemaking applied in CenturyTel. This is not the factual scenario presented in the instant case. Rather, it is undisputed that Ameritech complied with the proper procedural requirements in filing its tariffs as required by the statutes. It was a later substantive challenge by the appellants that led to the conclusion that the approved rates actually constituted a substitute charge for the carrier common line charge. Therein lies the distinction between this case and CenturyTel. Accordingly, in my opinion, the instant case is governed by the general rule that the Commission does not have the authority to order retroactive refunds, and not by the specific exceptions to that rule allowed in particular cases.

¶ 60. Finally, the majority suggests that ordering a refund is the only way to remedy the wrong which occurred here. I disagree. There are other remedies available to the appellants to recoup the unlawful charges, without having to grant the Commission authority, which is prohibited by statute. Specifically, Wis. Stat. § 196.219(4m) (2001-02) provides the means for any person injured to recoup losses as a result of the unlawful charges through a civil action.

¶ 61. Based on the foregoing, I would affirm the decision of the trial court in toto.

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

       For a recent summary effectively describing some of the economic considerations at play among competing telecommunications companies, see AT&T Communications of Ill., Inc. v. Illinois Bell Tel. Co., 349 F.3d 402, 404-07 (7th Cir. 2003).

       Wisconsin Stat. § 196.01(lb) defines "access service" as "the provision of switched or dedicated access to a local exchange network for the purpose of enabling a telecommunications provider to originate or terminate telecommunications service."

       Technically, Sprint, Excel, and AT&T are "competitive local exchange carriers" and Ameritech is the "incumbent local exchange carrier." See Wisconsin Bell, Inc. v. Public Serv. Comm'n, 2003 WI App 193, ¶¶ 2-3, 267 Wis. 2d 193, 670 N.W.2d 97.

       Wisconsin Stat. § 196.196(2)(b) provides:
      1. Intrastate access service rates of a price-regulated telecommunications utility with more than 150,000 access lines in use in this state may not exceed the utility's interstate rates for similar access services. The telecommunications utility shall eliminate 50% of its intrastate carrier common line charge within one year after its election to become price regulated and shall eliminate the balance of its intrastate carrier common line charge within one year thereafter.
      2. A price-regulated telecommunications utility with more than 150,000 access lines in use in this state shall eliminate intrastate carrier common line charges upon full authorization to provide interlata service.
      3. After eliminating intrastate carrier common line charges, the telecommunications utility may not reinstate an intrastate carrier common line charge or a substitute charge.

       We should clarify that Ameritech's approach, at least initially, was not surreptitious. In 1997, approximately sixteen months after it was statutorily required to eliminate its carrier common line charges, Ameritech filed for an exception tariff to implement an intrastate PICC. Ameritech advised the Commission that its requested tariff did not "in any manner constitute a substitute for a Carrier Common Line Charge." AT&T filed a complaint objecting to Ameritech's requested tariff. After reviewing the supporting documentation Ameritech provided, Commission staff responded "that Ameritech's PICC tariff does not need modification or withdrawal." That staff determination was not appealed.
      In 1998, Ameritech amended its tariff to correct what it said was a typographical error. In the process, however, it also increased its intrastate PICC rate. MCI and AT&T filed complaints with the Commission challenging Ameritech's PICC rate, leading to the hearing and decision underlying this appeal and cross-appeal.

       WISCONSIN Stat. § 196.03(6) provides:
      In determining a reasonably adequate telecommunications service or a reasonable and just charge for that telecommunications service, the commission shall consider at least the following factors in determining what is reasonable and just, reasonably adequate, convenient and necessary or in the public interest:
      (a) Promotion and preservation of competition consistent with ch. 133 [Trusts and Monopolies] and s. 196.219 [Protection of telecommunications consumers],
      (b) Promotion of consumer choice.
      (c) Impact on the quality of life for the public, including privacy considerations.
      (d) Promotion of universal service.

        (e) Promotion of economic development, including telecommunications infrastructure deployment.
      (f) Promotion of efficiency and productivity.
      (g) Promotion of telecommunications services in geographical areas with diverse income or racial populations.

       No doubt, equally complex determinations have led courts, traditionally, to accord great-weight deference in the area of utility rates. See, e.g., Wisconsin End-User Gas Ass'n v. Public Serv. Comm'n, 218 Wis. 2d 558, 561-62, 581 N.W.2d 556 (Ct. App. 1998) (noting that court owes great deference to agency in matters of statutory interpretation and rate setting but concluding de novo review was required for contract interpretation); Barron Elec. Coop. v. Public Serv. Comm'n, 212 Wis. 2d 752, 764-66, 569 N.W.2d 726 (Ct. App. 1997) (concluding that agency's experience and expertise merit great-weight deference); MCI Telecomms. Corp. v. State, 203 Wis. 2d 392, 403, 553 N.W.2d 284 (Ct. App. 1996) (concluding that agency's interpretation of statute governing assessment of utilities for payment of regulatory costs is due great-weight deference); City of Brookfield v. Milwaukee Metro. Sewerage Dist., 141 Wis. 2d 10, 14-16, 414 N.W.2d 308 (Ct. App. 1987) (concluding that agency's special expertise merits deference).

       In fact, from the accounting intricacies afflicting this field, it may not always be possible to determine whether profit, loss, or income neutrality has resulted from a given pricing mechanism. See AT&T Communications of Ill., Inc., 349 F.3d at 408 (where parties disputed whether rate covered or exceeded costs, "[b]oth propositions could be true," given a price-setting method that was of a "future-oriented, hypothetical-cost nature").

       Ameritech explains that "[a]ccess charges include many components," and that"[ujnderstanding access charges is difficult because of their sheer number of components and their varied and changing applications." Ameritech elaborates that the complications of setting access charges are many, relating to traffic-sensitive costs tied to call volume, and non-traffic-sensitive costs tied to technology that is "shared" and remains in place regardless of call volume. Further, Ameritech acknowledges, "[n]o accurate way exists to allocate" these shared costs "between and among various [interexchange carriers] and end users that use the local network to start and end long distance calls."

       Without retreating from our conclusion that the Commission's determination is due great-weight deference, we also note that, under the due deference standard, we still would affirm on the cross-appeal.
      "Due deference" is only a "slightly lower degree of deference" than "great weight deference." Jackson v. Employe Trust Funds Bd., 230 Wis. 2d 677, 686-87 n.3, 602 N.W.2d 543 (Ct. App. 1999). As we explained:
      While the difference between "due" and "great" deference is often elusive, it makes little difference in most cases, for in both instances the central question is whether the agency's decision is reasonable. The only difference is that, if due-weight deference is the standard, we will sustain the agency's reasonable determination unless an opposing interpretation is more reasonable, while under the great-weight deference rule, the reasonableness of the agency's interpretation is the only question.

        Id.

      In CenturyTel of the Midwest-Kendall, Inc. v. Public Service Comm'n, 2002 WI App 236, 257 Wis. 2d 837, 653 N.W.2d 130, review dismissed, 2003 WI 1, 258 Wis. 2d 111, 655 N.W.2d 130 (Nov. 12, 2002) (No. 02-0053), reviewing an issue involving telecommunications rate changes under Wis. Stat. § 196.20, we deemed it unnecessary to decide whether the Commission's construction and application of that statute should be accorded due weight or great weight because, we concluded, "we should give at least due weight" to the Commission's decision. Id., ¶ 18. Doing so, we concluded that the Commission's determination "comport[ed] with the purpose of the statute" and was not countered by "a more reasonable interpretation." Id. Here, under the due weight standard, we would reach the same conclusion for the reasons we have explained.

       Wisconsin Stat. § 196.22 provides:
      Discrimination forbidden. No public utility may charge, demand, collect or receive more or less compensation for any service performed by it within the state, or for any service in connection therewith, than is specified in the schedules for the service filed under s. 196.19 [relating, in part, to the fifing of rates with the Commission, and prohibiting any change of rates "except as provided under this chapter"], including schedules of joint rates, as may at the time be in force, or demand, collect or receive any rate, toll or charge not specified in the schedule.

       The parties present opposing views as to whether Wis. Stat. § 196.37(1) or (2) (2001-02) applies. The circuit court relied on § 196.37(1). The majority opinion refers to § 196.37(2). Nevertheless, both subsections contain the same prospective-only language.