author: LUNDSTEN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jesse Liukonen, Defendant-Appellant.
    Court of Appeals

      No. 03-1539-CR.

      Submitted on briefs December 5, 2003.

      Decided July 22, 2004.

    2004 WI App 157
    (Also reported in 686 N.W.2d 689.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Russell L. Hanson of Hanson Law Office, Westby.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Vergeront, Lundsten and Higginbotham, JJ.
   LUNDSTEN, J.

¶ 1. Jesse Liukonen asserts that he is entitled to resentencing before a new judge because the prosecutor breached the plea agreement during the sentencing hearing by, in effect, asking the sentencing judge to impose a harsher sentence than the one the prosecutor agreed to recommend. We agree with Liukonen that the prosecutor breached the plea agreement and agree that remand is necessary. We do not, however, order resentencing, but rather remand for further proceedings on the topic of ineffective assistance of counsel. This is necessary because Liukonen's plea breach claim was waived by the omission of an objection, because we cannot tell from the record whether Liukonen's counsel had a strategic reason for failing to object, and because the record does not disclose whether counsel consulted with Liukonen about the plea breach before proceeding with sentencing. As explained below, the need to resentence Liukonen before a new judge hinges on the outcome of that proceeding.

Background

¶ 2. In 1998, over the course of approximately three weeks, Liukonen committed several life-endangering crimes. Alone or with an accomplice, he robbed four stores using a handgun. During one robbery, Liukonen held a gun to a female customer. During a different robbery, Liukonen pointed his gun at a store worker and threatened to blow his head off and, during that same robbery, forced a sixteen-year-old girl to bind the store manager with duct tape and then ordered the girl and another man into a walk-in freezer. As a result of these robberies and other acts, Liukonen was charged in three counties with five counts: armed robbery while concealing identity and false imprisonment while using a dangerous weapon; conspiracy to commit armed robbery; burglary (involving the theft of guns from a hardware store); and party to the crime of armed robbery with threat of force.

¶ 3. Liukonen and the prosecutor entered into a plea agreement that substantially reduced Liukonen's total penalty exposure and included a favorable sentencing recommendation. The prosecutor moved for dismissal of penalty enhancers and one charge altogether and, pertinent to this appeal, agreed to cap his sentencing recommendation at a total of seventeen years of incarceration. The prosecutor agreed to recommend ten years on Count 1, five years concurrent on Count 2, and seven years, consecutive to Counts 1 and 2, on Count 3. The prosecutor also agreed to recommend withheld sentences and probation on Counts 4 and 5.

¶ 4. Liukonen entered pleas in accordance with the plea agreement, and the case proceeded to sentencing. The following comments by the prosecutor are the-focus of this case:

Basically the more I looked at this case, the more I heard from the victims, the more I argue today, I realize that Mr. Liukonen I think got an extreme break by the system here. If you look at what he could have been facing, and Mr. Liukonen did admit to his crimes, he was caught essentially red handed with the one in Poynette, admitted to the ones here in Prairie du Chien and Sauk County, he would be facing years upon years upon years upon years of prison, just a phenomenal amount, especially when you take the underlying offense and threw in all the penalty enhancers, use of a dangerous weapon, concealing one's identity. He could have been facing years such that he may not have ever seen the light of day if he got sentenced even close to the maximum, but he was convicted of three counts which were charged here in Crawford County: The Food Pride robbery with the penalty enhancers, the false imprisonment at Food Pride, and the attempted robbery at Aldi’s. He received some breaks from [prosecutors in Sauk County and Columbia County], I have gone through those. Essentially the defendant, even if the Court goes along with the proposed sentence recommendation, I think will he getting a tremendous break from the system, but it has been agreed to and the State will make the recommendation as agreed to by myself and the two assistant D.A.'s.

¶ 5. After hearing argument, the circuit court imposed a total twenty-year indeterminate sentence, consisting of twenty years on Count 1, five years concurrent on Count 2, twenty years concurrent on Count 3, and twenty years concurrent on Count 5. Liukonen also received a withheld sentence with ten years of probation on Count 4, consecutive to the sentences imposed on the other counts.

Discussion

¶ 6. Liukonen contends he is entitled to resen-tencing because the prosecutor's comments at sentencing breached the plea agreement. The State correctly points out that there was no objection to the prosecutor's alleged breach and, therefore, the proper framework for analysis is ineffective assistance of counsel. At the same time, the State concedes that Liukonen's appellate brief, albeit minimally, does raise the issue of ineffective assistance of trial counsel. The State proposes, and we agree, that the proper course is to follow the analysis used in State v. Howard, 2001 WI App 137, 246 Wis. 2d 475, 630 N.W.2d 244:

When [the defendant] failed to object to the State's alleged breach of the plea agreement at the sentencing hearing, he waived his right to directly challenge the alleged breach of the plea. Therefore, this case comes to us in the context of an ineffective assistance of counsel claim. We first consider whether the State breached the plea agreement. If there was a material and substantial breach, the next issues are whether [defendant's] counsel provided ineffective assistance and which remedy is appropriate.

Id., ¶ 12 (citation omitted); see also State v. Naydihor, 2004 WI 43, ¶ 9, 270 Wis. 2d 585, 678 N.W.2d 220. As will be seen, this case involves the additional question whether Liukonen agreed to a "new" plea agreement. See State v. Sprang, 2004 WI App 121, ¶¶ 27-28, 274 Wis. 2d 784, 683 N.W.2d 522.

¶ 7. Therefore, we first address whether there was a material and substantial breach of the plea agreement.

Plea Agreement Breach

¶ 8. As part of the plea agreement, the prosecutor agreed to "cap" his prison time recommendation at seventeen years, comprised of ten years on Count 1, five years concurrent on Count 2, and seven years, consecutive to Counts 1 and 2, on Count 3. Although the prosecutor made this recommendation at the sentencing hearing, Liukonen argues that resentencing before a new judge is required because the prosecutor breached the plea agreement by making comments implying that Liukonen deserved a longer sentence than the one the prosecutor formally recommended. We agree.

¶ 9. "[WJhether the State's conduct constitutes a breach of a plea agreement and whether the breach is material and substantial are questions of law." State v. Williams, 2002 WI 1, ¶ 2, 249 Wis. 2d 492, 637 N.W.2d 733. "An actionable breach must not be merely a technical breach; it must be a material and substantial breach." Id., ¶ 38. The principles applicable to the type of breach alleged in this case were summarized in State v. Hanson, 2000 WI App 10, 232 Wis. 2d 291, 606 N.W.2d 278:

If a guilty plea "rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." A prosecutor may not render a less than neutral recitation of the plea agreement. "Santobello proscribes not only explicit repudiations of plea agreements, but also 'end-runs around them.'" Thus, the State may not accomplish through indirect means what it promised not to do directly, and it may not covertly convey to the trial court that a more severe sentence is warranted than that recommended.

Id., ¶ 24 (citations omitted).

¶ 10. The plea agreement breach topic we address today involves a "fine line." Plea agreements in which a prosecutor agrees to cap his or her sentencing recommendation and hopes the court will impose the full recommendation "represent a fine line for the State to walk." Id., ¶ 27. When making sentencing arguments in these situations, nothing prevents prosecutors from supplying information that supports a harsher sentence than the one recommended by the prosecutor. In fact, a plea agreement

"[may] not prohibit the [prosecutor] from informing the trial court of aggravating sentencing factors.... At sentencing, pertinent factors relating to the defendant's character and behavioral pattern cannot be immunized by a plea agreement between the defendant and the state.' A plea agreement which does not allow the sentencing court to be appraised of relevant information is void [as] against public policy."

Naydihor, 270 Wis. 2d 585, ¶ 21 (quoting State v. Ferguson, 166 Wis. 2d 317, 324, 479 N.W.2d 241 (Ct. App. 1991)). Furthermore, nothing prevents a prosecutor from characterizing a defendant's conduct in harsh terms, even when such characterizations, viewed in isolation, might appear inconsistent with the agreed-on sentencing recommendation. For example, in Ferguson, 166 Wis. 2d 317, where the prosecutor agreed to recommend probation with an imposed and stayed sentence, there was no plea breach even though the prosecutor characterized the offenses as "the most perverted of all perverted sex acts and stated, this is the sickest case that I have seen or read about. If I refer to this defendant as 'sleaze,' I think that would be giving him a compliment." Id. at 319-20, 325.

¶ 11. Prosecutors may provide relevant negative information and, in particular, may provide negative information that has come to light after a plea agreement has been reached. However, prosecutors may not make comments that suggest the prosecutor now believes the disposition he or she is recommending pursuant to the agreement is insufficient. The supreme court has explained: "Although the State is not barred from using negative information about the defendant that has come to light after the plea agreement and before the sentencing, the State may not imply that if the State had known more about the defendant, the State would not have entered into the plea agreement." Williams, 249 Wis. 2d 492, ¶ 50.

¶ 12. Given the latitude that prosecutors have during sentencing argument to highlight negative information about defendants, it is not surprising that prosecutors sometimes find it difficult to refrain from implicitly arguing for a harsher sentence than the recommended sentence while at the same time urging the court to impose no less. We think the State's brief aptly explains the dilemma:

[A]s is often the case when a prosecutor agrees to cap a sentence recommendation, the cap of 17 years' imprisonment [in this case] represented not only the maximum sentence the prosecutor was asking for, but also the minimum sentence that the prosecutor wanted the court to impose — the "floor," if you will, below which the prosecutor did not want the court to go ....
[When] a prosecutor does not want the court to impose a sentence below that which the prosecutor has agreed to cap his or her recommendation[,] the prosecutor has a challenging task. He or she must abide by the sentencing recommendation and not request, either explicitly or implicitly, a greater sentence than he or she has agreed to recommend.

¶ 13. We acknowledge the challenge faced by prosecutors, but conclude that the prosecutor in this case crossed the "fine line." As discussed below, he did so by implicitly arguing that the court should impose a sentence exceeding the recommended sentence.

¶ 14. For the most part, the prosecutor's remarks constituted fair comment on the seriousness of Liukonen's conduct, criminal history, and character, even when the prosecutor employed strong language. However, the prosecutor also talked about information he had learned and testimony he had heard after he entered into the plea agreement, and then used language suggesting he now thought the agreement was too lenient.

¶ 15. After talking about the presentence report —which the prosecutor interpreted as revealing an admission by Liukonen that he was on an escalating path to increasingly dangerous behavior — and referencing the chilling sentencing hearing testimony of three victims, the prosecutor stated:

Basically the more I looked at this case, the more I heard from the victims, the more I argue today, I realize that Mr. Liukonen I think got an extreme break by the system here .... He could have been facing years such that he may not have ever seen the light of day if he got sentenced even close to the maximum, but he was convicted [pursuant to the plea agreement] of three counts .... He received some breaks from [prosecutors in Sauk County and Columbia County], I have gone through those. Essentially the defendant, even if the Court goes along with the proposed sentence recommendation, I think will be getting a tremendous break from the system, but it has been agreed to and the State will make the recommendation as agreed to by myself and the two assistant D.A.'s.

These comments communicated to the circuit court that the prosecutor was making the plea agreement recommendation because he was bound to do so, not because he thought it constituted an appropriate prison term. The State's brief admits as much:

It may well be that the prosecutor's comments at sentencing — particularly those that suggested that Liukonen would be getting "an extreme break" or "a tremendous break" if the court went along with the prosecutor's recommendation that it impose a sentence of 17 years' imprisonment — implied that Liukonen deserved harsher punishment than that which the prosecutor had agreed to recommend. The critical question is not whether the prosecutor's comments implied that —they probably did — but rather whether such an implication breached the plea agreement under the circumstances of this case.

(Emphasis added.) The question, of course, is whether the prosecutor's comments "implied that" the prosecutor believed Liukonen deserved a harsher sentence than the one the prosecutor had agreed to recommend. Justice Wilcox aptly summarized this point in his separate opinion in Williams:

I concede that the prosecutor's statements could be characterized as not enthusiastically supportive of the plea agreement, but there is no requirement that they be enthusiastic. Poole, 131 Wis. 2d at 364. The test is only whether or not the recommendation was undercut by the prosecutor's comments — whether the prosecutor explicitly or implicitly suggests that she has changed her mind about her recommendation.

Williams, 249 Wis. 2d 492, ¶ 71 (Wilcox, J., concurring in part, dissenting in part). As we have explained, that is what occurred here.

¶ 16. The case law on this topic does not put well-meaning prosecutors in unresolvable quandaries. Here, for example, the prosecutor might have made almost the same sentencing argument if he had also effectively communicated to the sentencing court that, even taking into account new information and the testimony of victims, he still believed the seventeen-year recommendation was an appropriate sentence. The prosecutor could have asserted that the recommendation was appropriate and at the same time argued that the circumstances were so severe that the court should impose no less. Instead, the prosecutor all but told the court he was only making the seventeen-year recommendation because of his plea agreement obligation.

¶ 17. Accordingly, we conclude the prosecutor breached the plea agreement by making comments that implied that Liukonen should receive a harsher sentence than the one the prosecutor had agreed to recommend.

Whether Liukonen Received Ineffective Assistance of Counsel and Whether Liukonen Agreed to Proceed Despite the Plea Breach

¶ 18. There was no objection to the prosecutor's breach of the plea agreement. The breach issue, therefore, was waived, and the question arises whether Liukonen's trial counsel performed deficiently when counsel failed to object to the prosecutor's comments. A defendant alleging ineffective assistance of counsel bears the burden of showing that his counsel's performance was deficient and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984).

¶ 19. On this ineffective assistance topic, we follow the analysis we used in Howard, 246 Wis. 2d 475. In Howard, after concluding that the prosecutor breached the plea agreement during sentencing arguments, we addressed whether the defense attorney rendered ineffective assistance because he failed to object to the breach. Id., ¶¶ 20-21. As here, in Howard there had been no Machner hearing before the appeal. In keeping with Howard, we conclude that prejudice can be presumed if Liukonen can establish deficient performance, and we reverse and remand for a Machner hearing on that issue. See Howard, 246 Wis. 2d 475, ¶ 29.

¶ 20. There is, however, a distinct ineffective assistance issue that may prove to be dispositive on remand. Even if Liukonen's trial counsel had a sufficient strategic reason for failing to object to the breach and, thus, did not perform deficiently, Liukonen may nonetheless be entitled to resentencing if his counsel did not consult with him about foregoing an objection. See Sprang, 214 Wis. 2d 784, ¶¶ 27-29.

¶ 21. In Sprang, we explained that when a prosecutor breaches a plea agreement by arguing for a harsher sentence than the one the prosecutor agreed to recommend, the agreement has "morphed" into a new agreement. Thus, defense counsel must consult with the defendant and receive verification that the defendant wishes to proceed with the "new" plea agreement. See id., ¶ 28. The Sprang decision teaches that even a strategically sound decision by defense counsel to forgo an objection to a prosecutor's breach without consulting with the defendant constitutes deficient performance because it is "tantamount to entering a renegotiated plea agreement without [the defendant's] knowledge or consent." Id., ¶ 29. Further, "[b]ecause counsel's deficient performance involved a breach of a plea agreement, [the defendant] is automatically prejudiced." Id.

¶ 22. The transcript in this case does not indicate whether Liukonen's counsel consulted with Liukonen regarding the breach during the sentencing hearing. Therefore, on remand, it should be determined whether such consultation occurred and whether Liukonen agreed to proceed despite the breach. If both did not occur, Liukonen is entitled to resentencing before a new judge regardless whether his counsel had a valid strategic reason for failing to object to the breach.

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

       Three prosecutors from three counties were involved in plea negotiations, but for ease of discussion we talk as if there was a single prosecutor. Also, the sentencing court indicated that Liukonen was originally facing seven counts and was pleading to five. Our review of the record, however, reveals only six original charges arising out of five separate incidents.

       Our analysis does not involve an assessment of whether an alleged breach actually influenced the sentencing court. See, e.g., Santobello v. New York, 404 U.S. 257, 262-63 (1971) ("[The sentencing judge] stated that the prosecutor's recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts [either for resentencing by a different judge or plea withdrawal].... We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge."); see also State v. Thompson, 146 Wis. 2d 554, 565-66, 431 N.W.2d 716 (Ct. App. 1988).

       We do not suggest that the prosecutor in this case was not well intended. We cannot determine from a cold record what was in the prosecutor's mind; we only conclude that his words crossed the "fine line." We observe, however, that abiding by a plea agreement is most problematic when prosecutors attempt to abide by the letter of an agreement and at the same time hope to subtly persuade the court to impose a harsher sentence.

       This is not to say that Liukonen's attorney ignored the prosecutor's comments. As in Sprang, trial counsel here began his argument by questioning whether the prosecutor had breached the agreement, but did not actually lodge an objection. See State v. Sprang, 2004 WI App 121, ¶ 11, 274 Wis. 2d 784, 683 N.W.2d 522.

        See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    Diamondback Funding, LLC, Plaintiff-Appellant, v. Chili's of Wisconsin, Inc., Defendant-Respondent.
    Court of Appeals

      No. 03-2376.

      Oral argument July 7, 2004.

    Decided July 27, 2004.

    2004 WI App 161
    (Also reported in 687 N.W.2d 89.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John A. Busch of Michael Best & Friedrich LLP, of Milwaukee. There was oral argument by John A. Busch.

    On behalf of the defendant-respondent, the cause was submitted on the brief of Paul D. Bauer of Quarles & Brady, of Milwaukee. There was oral argument by Paul D. Bauer.

    Before Wedemeyer, EJ., Fine and Curley, JJ.
   FINE, J.

¶ 1. Diamondback Funding, LLC, appeals from a summary judgment dismissing its verified complaint against Chili's of Wisconsin, Inc. Diamondback sought, in addition to "[ojther relief," to enjoin Chili's from building and operating a Chili's Grill and Bar on a lot next to a lot owned by Diamondback on which Diamondback's corporate affiliate operates a Tumbleweed Southwest Mesquite Grill and Bar. We reverse.

I.

¶ 2. The Diamondback lot is in Franklin, Wisconsin. Diamondback bought the lot from Home Depot USA, Inc., in July of 1999. As part of the sale, Home Depot agreed, as material to this appeal, "to deed restrict the adjoining outlot (the 'Outlot') to prohibit the operation of any casualty [sic — should be "casual"], theme-type restaurants specializing in Mexican food." (Parenthetical in original.)

¶ 3. In April of 2000, Home Depot sold to Rose Properties, LLC, the outlot referred to in the July 1999 agreement with Diamondback. Home Depot and Rose agreed in a contemporaneous "Restrictive Covenants Agreement," dated April 5, 2000, that, as material here: "No portion of the [outlot] may be leased, used or occupied as or for a. .. Mexican restaurant... or any other restaurant (except for. . . (ii) a fast food restaurant, provided such fast food restaurant does not serve primarily Mexican food)." The agreement specifically recited that all the restrictive covenants "shall run with the land and be binding upon Rose and each of Rose's tenants, subtenants and other occupants, and its and their respective successors and assigns."

¶ 4. In May of 2002, Home Depot and Rose purported to modify the April 2000 restrictive covenant to, among other things:

• "clarify that the establishment and operation of a Chili's Grill & Bar is a permitted use of the" outlot; and
• delete the "Mexican restaurant... or any other restaurant (except for.. . (ii) a fast food restaurant, provided such fast food restaurant does not serve primarily Mexican food)" language from the April 5, 2000, Restrictive Covenants Agreement, and, in its place, substitute: "or any casual theme-type restaurant specializing in Mexican food."

Diamondback was not a party to the purported modifications. Rose sold the lot to Chili's in July of 2002.

¶ 5. As noted, the trial court granted summary judgment to Chili's and dismissed Diamondbacks complaint seeking to enjoin Chili's from running its restaurant on the lot. It ruled that the "specializing in Mexican food" language was "ambiguous on its face" and, therefore, was not enforceable. The trial court explained in its oral decision:

I don't know what that term means. I wouldn't know how to begin to instruct a jury on it. And it seems to me we would be left with one, or the fact finder, one fact-finder saying, well, specializing means it's got to be 95 percent or a hundred percent or 75 percent or 51 percent and, or do they look at it from the standpoint of profits.

The trial court did not address whether the restrictive covenant in the Chili's/Rose April 2000 contract ("Mexican restaurant... or any other restaurant (except for... (ii) a fast food restaurant, provided such fast food restaurant does not serve primarily Mexican food)") was also, in its view, "ambiguous."

II.

¶ 6. Summary judgment is used to determine whether there are any disputed facts that require a trial, and, if not, whether a party is entitled to judgment as a matter of law. Wis. Stat. Rule 802.08(2); U.S. Oil Co. v. Midwest Auto Care Servs., Inc., 150 Wis. 2d 80, 86, 440 N.W.2d 825, 827 (Ct. App. 1989). Our review of a trial court's grant of summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987). Additionally, interpretation of a restrictive covenant and, as a corollary, whether the covenant is too ambiguous to be enforced are also legal issues that are subject to our de novo review. Zinda v. Krause, 191 Wis. 2d 154, 165, 528 N.W.2d 55, 59 (Ct. App. 1995). Whether to grant or deny an injunction is vested in the trial court's reasoned discretion. Bubolz v. Dane County, 159 Wis. 2d 284, 296, 464 N.W.2d 67, 72 (Ct. App. 1990). "A discretionary determination will be sustained where it is demonstrably made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law." State v. Seigel, 163 Wis. 2d 871, 889, 472 N.W.2d 584, 592 (Ct. App. 1991).

¶ 7. As noted, the trial court granted summary judgment to Chili's dismissing Diamondbaek's verified complaint because it viewed the "specializing in Mexican food" language to be "ambiguous on its face" and, therefore, an unenforceable restriction. But that ruling frames only part of the issue presented for our review.

¶ 8. Chili's does not dispute that the April 2000 restrictive covenant prohibiting on the lot conveyed to Rose "a .. . Mexican restaurant... or any other restaurant (except for ... (ii) a fast food restaurant, provided such fast food restaurant does not serve primarily Mexican food)" was drafted and inserted to comply with Home Depot's obligation to Diamondback "to prohibit the operation of any casual[] theme-type restaurants specializing in Mexican food" on that lot. Chili's also does not dispute that, accordingly, Diamondback was a third-party beneficiary of the Home Depot/Rose restrictive covenant, which was binding on Chili's because it ran with the land. See Boyden v. Roberts, 131 Wis. 659, 666-669, 111 N.W. 701, 703-704 (1907) (real property is burdened with restriction that runs with the land).

¶ 9. It is black-letter law that a contract provision designed to benefit a third party may not either be rescinded or modified without consent of that third party. Seher v. Kurz, 13 Wis. 2d 398, 402, 108 N.W.2d 529, 532 (1961). Diamondback did not consent to the purported May 2002 modification. Accordingly, the May 2002 modification could not and did not dilute Diamondbacks rights in the restrictive covenant in the April 2000 Chili's/Rose contract. Thus, the May 2002 modification, which purported to "clarify that the establishment and operation of a Chili's Grill & Bar is a permitted use of the" lot sold by Home Depot to Rose was a nullity. And the purported modification in the restrictive-covenant language from "[n]o portion of the [outlot] may be leased, used or occupied as or for a .. . Mexican restaurant... or any other restaurant (except for... (ii) a fast food restaurant, provided such fast food restaurant does not serve primarily Mexican food)" to "or any casual theme-type restaurant specializing in Mexican food" is also a nullity to the extent that it might permit a restaurant barred by the April 2000 restrictive covenant, an issue that we do not decide.

¶ 10. As Diamondback asserts, the restrictive-covenant language requires a two-step analysis. First, is the language itself ambiguous? Second, if it is not, does it apply to the Chili's restaurant? We address these matters in turn.

A. Alleged ambiguity of the restrictive covenant.

¶ 11. First, the parties agree that Chili's is a "casual theme-type restaurant." Second, we discern no substantive difference between a restrictive covenant prohibiting a restaurant serving "primarily Mexican food" and one prohibiting a restaurant "specializing in Mexican food," although arguably both seem to cast a wider net than one prohibiting a "Mexican restaurant."

¶ 12 Zinda states the rule in Wisconsin as to whether a restrictive covenant is too vague to be enforced:

The language in a restrictive covenant is ambiguous if it is susceptible to more than one reasonable interpretation. However, if the intent of a restrictive covenant can be clearly ascertained from the covenant itself, the restrictions will be enforced. By intent we do not mean the subjective intent of the drafter, but the scope and purpose of the covenant as manifest by the language used.

Id., 191 Wis. 2d at 165-166, 528 N.W.2d at 59 (citations omitted). The restrictive covenant in Zinda prohibited property owners from doing "anything or permitting] anything to be done to the common area which would adversely affect the vegetation and natural beauty of the common area." Id., 191 Wis. 2d at 162, 528 N.W.2d at 57. Those whose activities were allegedly proscribed complained that the phrase "natural beauty" was too vague to be enforced because it implicated subjective assessments that would, per force, vary from one person to another. Id., 191 Wis. 2d at 166, 528 N.W.2d at 59. Zinda disagreed, noting that the "natural beauty" language only kicked in when it was harmed by something that "adversely affect[ed]" the vegetation. Ibid. Zinda explained:

[A]lthough we agree that beauty may be a subjective impression that varies from person to person, when read in context it is clear that the purpose of the covenant is to restrict those activities that threaten the common area's natural condition. Therefore, because the purpose of the covenant may be clearly ascertained, the trial court properly determined that the covenant was valid and enforceable.

Id., 191 Wis. 2d at 167, 528 N.W.2d at 59.

¶ 13. Chili's contends, however, that under Crowley v. Knapp, 94 Wis. 2d 421, 288 N.W.2d 815 (1980), a restrictive covenant may not be enforced unless it is "expressed in clear, unambiguous, and peremptory terms." Id., 94 Wis. 2d at 435, 288 N.W.2d at 822. Of course. But the restrictive covenants here are clear, unambiguous, and peremptory.

¶ 14. In Crowley the restrictive covenant limited construction on the land to "one single family dwelling" that would not "house more than one family." Id., 94 Wis. 2d at 431, 288 N.W.2d at 820. The trial court held that the restrictive covenant limited occupancy to persons " 'who were related to one another by blood or marriage and who resided in such dwelling as a single housekeeping unit.'" Id., 94 Wis. 2d at 434, 288 N.W.2d at 822. It thus ruled that occupancy of the house by those whom Crowley characterized as unrelated adult "retarded citizens," id., 94 Wis. 2d at 432, 288 N.W.2d at 821, violated the restrictive covenant, id., 94 Wis. 2d at 434, 288 N.W.2d at 822. Crowley determined otherwise and, giving an expansive reading to the word "family," held that the proposed occupancy did not violate the restrictive covenant. Id., 94 Wis. 2d at 435-440, 288 N.W.2d at 822-824. Significantly, Crowley did not hold that the restrictive covenant in that case could not be enforced because it was ambiguous. Rather, Crowley held that the projected use did not violate the covenant: "We conclude that, although the plaintiffs had the equitable right to enforce restrictive covenants contained in all the [applicable] deeds, no covenant was violated." Id., 94 Wis. 2d at 440, 288 N.W.2d at 824.

¶ 15. As we have seen, the trial court determined that the word "specializing" in the context of the modified restrictive covenant was too ambiguous to be enforced, and did not address whether, in its view, the word "primarily" in the original restrictive covenant encumbering the land that Home Depot conveyed to Rose was similarly too vague to be enforced. On our de novo review, we conclude that neither "specializing in" something nor "primarily" is ambiguous.

¶ 16. A recognized dictionary defines "specializing" as "To concentrate on a particular activity or product: The shop specializes in mountain-climbing gear." The American Heritage Dictionary of the English Language 1730 (3d ed. 1992) (italics in original); see Seigel, 163 Wis. 2d at 886, 472 N.W.2d at 590 ("common meaning of words may be established by using a recognized dictionary"). Similarly, in the context here, the word "specialize" is defined by another recognized dictionary as "to concentrate one's efforts : develop or pursue a specialty <~ in copyright law> < their restaurants ~ in Swedish cuisine>." Webster's Third New International Dictionary 2186 (1993). The word "primarily" is similarly defined: "Chiefly; mainly: a scholastic program primarily for seniors; a primarily middle-class neighborhood," The American Heritage Dictionary at 1438 (italics in original); "Fundamentally, principally chas now become ~ a residential town — S.EB. Mais>," Webster's at 1800. This is all just common sense and reflects the common use of our language that, as applied here, really needs no formal, cited, "definition."

¶ 17. Of course, both "specializing in" and "primarily" require a fact-finder to discern what activities meet the standards. But we routinely delegate such fact-finding assessments in situations requiring greater sifting and filtering: the "ordinary care" and "substantial factor" tests in negligence cases, and the "beyond reasonable doubt" standard in criminal cases come readily to mind, as does the use in Wis. Stat. § 980.01(7) of the phrase "substantially probable," which "when construed according to its common and appropriate usage to mean 'much more likely than not,' is not unconstitutionally vague." State v. Curiel, 227 Wis. 2d 389, 395, 597 N.W.2d 697, 700 (1999). Significantly, even experienced judges have difficulty with assigning a percentage threshold to the phrase "beyond a reasonable doubt," see Guzman v. St. Francis Hosp., Inc., 2001 WI App 21, ¶ 4 n.3, 240 Wis. 2d 559, 569 n.3, 623 N.W.2d 776, 781 n.3 ("survey of federal trial judges in the Eastern District of New York discovered that their estimates of what, in a probabilistic sense, was required to satisfy the 'beyond a reasonable doubt standard' 'ranged from 76 to 90 percent, with 85 percent the modal response'") (quoted source omitted), upon which depends the freedom of so many criminal defendants.

¶ 18. Similarly, in the First Amendment area, we have asked fact-finders to apply far more arcane concepts than "specializing in" or "primarily":

What appeals to "prurient interest in sex" must be judged by community standards. What amounts to "patently offensive" in the manner of description is not expressly defined in Miller [v. California, 413 U.S. 15, 24 (1973)], but it is reasonable to read this term, too, as being determined by contemporary community standards. There is no vagueness in the commonly accepted meaning of the terms "literary, artistic, political or scientific value" and these are qualified by the adjective "serious" which means important and not trifling.

State ex rel. Chobot v. Circuit Court, 61 Wis. 2d 354, 360, 212 N.W.2d 690, 693 (1973) (citations and parenthetical omitted); see also Hamling v. United States, 418 U.S. 87, 98 n.8, 110-117 (1974) (federal statute proscribing "[ejvery obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance" not impermissibly vague) (collecting cases). That the standard may be difficult to apply in a particular case does not alter the verity that the concepts of "primarily" and "specializing in" are clear. Additionally, that various fact-finders may apply those concepts differently in apparently similar cases does make the concepts themselves ambiguous or vague. See Smith v. United States, 431 U.S. 291, 309 (1977) ("[T]he possibility that different juries might reach different conclusions as to the same material does not render the statute [proscribing obscene material] unconstitutional."). The restrictive covenants are valid.

B. Application of the restrictive covenant to Chili's.

¶ 19. The parties dispute whether Chili's is a "Mexican restaurant," a restaurant that serves "primarily Mexican food," or is a restaurant "specializing in Mexican food." The plethora of conflicting material they have each submitted on the subject leaves us no doubt but that whether Chili's falls within any of the restrictive-covenant proscriptions must, under the summary judgment standards we have previously noted, be decided by a fact-finder. In order to get an injunction, Diamondback must show that Chili's will injuriously violate Diamondbacks rights by maintaining a restaurant on the lot that either serves "primarily Mexican food," or is a restaurant "specializing in Mexican food," or is a "Mexican restaurant," and, also, that its "injury is irreparable, i.e., not adequately compensable in damages." Bubolz, 159 Wis. 2d at 296, 464 N.W.2d at 72; cf. Lake Bluff Hous. Partners v. City of S. Milwaukee, 2001 WI App 150, ¶ 10, 246 Wis. 2d 785, 792, 632 N.W.2d 485, 488-489 (trial court has discretion to order razed building constructed in violation of zoning ordinance). The summary judgment record on these issues also reveals that there are genuine disputes of material fact that require a trial. Further, because it appears to us, as it did to the trial court, that Home Depot may be a necessary party to any further proceedings in this case, see Wis. Stat. Rule 803.03(1), the trial court on remand should consider any motion made by Diamondback to assert claims against Home Depot in light of whatever objections may be made by Home Depot or Chili's.

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

       Chili's asserts that Diamondback waived reliance on the April 2000 restrictive covenant by not arguing it to the trial court. We disagree. First, Diamondback's verified complaint averred: "On or about April 5, 2000, Home Depot conveyed Parcel 2 to Rose Properties LLC ('Rose Properties'), pursuant to a Warranty Deed, which restricted Parcel 2 by prohibiting the operation of any restaurant (except for an Old Country Buffet or a fast-food restaurant that does not serve primarily Mexican food) on Parcel 2." (Underlining in original.) The complaint also averred that when Diamondback learned that Rose was going to sell the lot subject to the restrictive covenant "to Chili's for the purposes of operating a Chili's Grill and Bar," Diamondback "advised Rose Properties that Diamondback intended to enforce the deed restriction prohibiting the operation of any restaurant." According to Diamondback's verified complaint, Home Depot and Rose then purported to modify the April 2000 restrictive covenant. Reading Diamondback's complaint with the liberality required by Wis. Stat. Rule 802.02(1), see Korkow v. General Casualty Co. of Wisconsin, 117 Wis. 2d 187, 193, 344 N.W.2d 108, 111-112 (1984), Diamondback sufficiently framed the issue presented to the trial court to encompass whether Chili's restaurant violates the April 2000 restrictive covenant. Diamondback's failure to argue the April 2000 restrictive covenant language is therefore not a waiver. See State v. Weber, 164 Wis. 2d 788, 789, 476 N.W.2d 867, 868 (1991) (noting distinction between an issue raised and "discrete arguments that may be made, pro or con, in the disposition" of that issue) (on motion for reconsideration); cf. Fletcher v. Eagle River Mem'l Hosp., Inc., 156 Wis. 2d 165, 178-180, 456 N.W.2d 788, 794-795 (1990) (party not bound by concession on legal issue). Moreover, we may, of course, consider matters not first presented to the trial court. Wirth v. Ehly, 93 Wis. 2d 433, 443-444, 287 N.W.2d 140, 145-146 (1980).

       WISCONSIN Stat. § 980.01(7) defines a "[s]exually violent person" as someone who has a history of "sexually violent" crimes and "who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence."


author: SNYDER, J.

text:
    State of Wisconsin ex rel. William A. Krieger, Petitioner-Appellant, v. Thomas G. Borgen, Warden, Respondent-Respondent.
    Court of Appeals

      No. 03-2733.

      Submitted on briefs May 5, 2004.

    —Decided July 28, 2004.

    2004 WI App 163
    (Also reported in 687 N.W.2d 79.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Thomas J. Nitschke of Nitschke & Sika, S.C., Milwaukee.
    On behalf of the respondent-respondent, the cause was submitted on the briefs of William L. Gansner, assistant attorney general, and Peggy A. Lauten-schlager, attorney general.
    Before Anderson, PJ., Nettesheim and Snyder, JJ.

       Petition to review denied 10-19-2004.

   SNYDER, J.

¶ 1. William A. Krieger appeals from an order denying his petition for a writ of habeas corpus. Krieger contends that the circuit court erred when it ruled that the petition was procedurally barred and declined to review the merits. We disagree and affirm the order of the circuit court.

FACTS

¶ 2. The facts are brief and undisputed. In 1989, Krieger pled no contest to twenty sex-related offenses. The circuit court found that his pleas were freely and voluntarily entered and sentenced Krieger to fifty years in prison. Krieger filed postconviction motions for plea withdrawal and sentence modification, which the circuit court denied. We affirmed the judgment and post-conviction order in State v. Krieger, 163 Wis. 2d 241, 246, 471 N.W.2d 599 (Ct. App. 1991). Our supreme court denied review. State v. Krieger, 162 Wis. 2d xlix, 474 N.W.2d 107 (Wis. July 30, 1991) (No. 90-1771-CR).

¶ 3. In April 2003, Krieger filed a petition for writ of habeas corpus with the circuit court pursuant to Wis. Stat. § 782.01 (2001-02). Krieger alleged, among other things, that his pleas were coerced, his due process rights were violated, and his trial counsel was ineffective. The court determined that the petition was procedurally barred because Krieger failed to raise his claims in his postconviction hearing or on direct appeal and did not provide a sufficient reason for failing to do so. The court further ruled that Krieger had other remedies available to him and therefore a writ of habeas corpus was not appropriate. The circuit court did not address the merits of Krieger's claims. Krieger appeals.

DISCUSSION

¶ 4. Krieger presents but one issue on appeal: Whether the circuit court erred in retroactively applying the rule in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), to bar his claims. In Escalona-Naranjo, our supreme court held that a defendant who could have raised a claim on direct appeal or in a prior Wis. Stat. § 974.02 postconviction motion, but failed to do so, cannot assert the claim in a subsequent Wis. Stat. § 974.06 motion unless the defendant can demonstrate a sufficient reason for the failure. Escalona-Naranjo, 185 Wis. 2d at 185. Here, Krieger did not bring a motion for relief under § 974.06; he petitioned for a writ of habeas corpus under Wis. Stat. § 782.01. For reasons discussed below, we hold that the Escalona-Naranjo rule can be applied retroactively to Krieger's case; however, we affirm the circuit court's conclusion that Krieger is not entitled to habeas corpus relief because he failed to pursue other remedies available to him.

¶ 5. Under Wis. Stat. § 782.01, a person restrained of personal liberty is authorized to prosecute a writ of habeas corpus. Habeas corpus relief, however, is available to a petitioner only under limited circumstances. Three factors must exist: (1) a person seeking habeas corpus relief must be restrained of his or her liberty, (2) the person must show that the restraint was imposed by a body without jurisdiction or that the restraint was imposed contrary to constitutional protections, and (3) the person must show that there is no other adequate remedy available in the law. State ex rel. Haas v. McReynolds, 2002 WI 43, ¶ 12, 252 Wis. 2d 133, 643 N.W.2d 771. Unless these criteria are met, the writ of habeas corpus is not available to the petitioner. Id. The application of a legal rule to an undisputed set of facts is a question of law which we review de novo. State v. Tolefree, 209 Wis. 2d 421, 424, 563 N.W.2d 175 (Ct. App. 1997).

¶ 6. Habeas corpus relief is subject to the terms of Wis. Stat. § 974.06, which states in relevant part:

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

Sec. 974.06(8). In a review of the history and purpose of § 974.06, our supreme court explained that "the postcon-viction motion procedure under sec. 974.06 was 'designed to replace habeas corpus as the primary method in which a defendant can attack his conviction after the time for appeal has expired.'" Escalona-Naranjo, 185 Wis. 2d at 176. The legislature has provided Krieger with a means to challenge jurisdictional and constitutional flaws in his conviction through a motion under § 974.06. Because Krieger cannot show that he has no other adequate remedy available, we conclude that his petition for a writ of habeas corpus was properly denied. See McReynolds, 252 Wis. 2d 133, ¶ 12.

¶ 7. We recognize that if Krieger now brings a motion under Wis. Stat. § 974.06, the dispute over the retroactive application of the Escalona-Naranjo rule will remain. Generally, when the resolution of one issue disposes of an appeal, we will not address additional issues. Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938). However, in the interest of judicial economy, we may address issues that are likely to recur. State v. Temby, 108 Wis. 2d 521, 527, 322 N.W.2d 522 (Ct. App. 1982). For that reason, we decide the issue of retroac-tivity here. Whether to retroactively apply the holding of a case is a question of law that we decide de novo. State v. Howard, 211 Wis. 2d 269, 276, 564 N.W.2d 753 (1997), overruled on other grounds by State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765.

¶ 8. Recently, our supreme court took up the issue of the retroactive application of new rules, such as the Escalona-Naranjo rule. In State v. Lagundoye, 2004 WI 4, 268 Wis. 2d 77, 674 N.W.2d 526, the court set forth a detailed framework for determining retroactivity. "[A] new rule of substantive criminal law is presumptively applied retroactively to all cases, whether on direct appeal or on collateral review." Id., ¶ 12. Furthermore, Wisconsin law holds that "new rules of criminal procedure are to be applied retroactively to all cases pending on direct review or non-finalized cases still in the direct appeal pipeline." Id. However, "a new rule of criminal procedure generally cannot be applied retroactively to cases that were final before the rule's issuance under the federal nonretroactivity doctrine announced by the Supreme Court plurality opinion in Teague v. Lane, 489 U.S. 288 (1989)." Lagundoye, 268 Wis. 2d 77, ¶ 13. Accordingly, to determine whether the Escalona-Naranjo rule applies to Krieger, we must consider whether the Escalona-Naranjo rule was "new," whether it was a rule of criminal procedure, and whether Krieger's case was final at the time he brought his petition.

¶ 9. A rule is new if the result was not dictated by precedent existing at the time the defendant's conviction became final. Lagundoye, 268 Wis. 2d 77, ¶ 26. Prior to Escalona-Naranjo, the law stated that although a defendant failed to raise a constitutional issue on appeal, the issue still must be considered when raised in a subsequent Wis. Stat. § 974.06 motion. Bergenthal v. State, 72 Wis. 2d 740, 748, 242 N.W.2d 199 (1976). Neither party disputes that in 1994 Escalona-Naranjo expressly overruled Bergenthal, holding that § 974.06 "compels a prisoner to raise all grounds regarding postconviction relief in his or her original, supplemental or amended motion" and "requires a sufficient reason to raise a constitutional issue in a sec. 974.06 motion that could have been raised on direct appeal or in a sec. 974.02 motion." Escalona-Naranjo, 185 Wis. 2d at 185. The Escalona-Naranjo rule, therefore, satisfies this part of the Lagundoye analysis.

¶ 10. The parties do not dispute that Krieger's case was final at the time he brought his petition for collateral review. A case is final when the prosecution is no longer pending, a judgment or conviction has been entered, the right to a state court appeal from a final judgment has been exhausted, and the time for certio-rari review in the United States Supreme Court has expired. Lagundoye, 268 Wis. 2d 77, ¶ 20. The Escalona-Naranjo rule was created in 1994, more than two years after Krieger's Wis. Stat. § 974.02 state appeal process was exhausted and his time for certiorari review in the United States Supreme court had expired. His case was indeed final when Escalona-Naranjo was decided.

¶ 11. The disputed issue is whether the character of the new rule is one of criminal procedure. Lagundoye provides guidance for analyzing whether a rule is one of substantive criminal law or one of criminal procedure. The State argues here that the new rule, while it may be procedural, is civil in nature and not one of criminal procedure; therefore, the Lagundoye test is not met and the general rule of nonretroactivity is inapplicable. In fact, Wis. Stat. § 974.06 by its own terms states that " [proceedings under this section shall be considered civil in nature, and the burden of proof shall be upon the person." Sec. 974.06(6). For this reason, we accept the State's assertion that the retroactivity analysis of the Escalona-Naranjo rule is not governed by Teague and Lagundoye.

¶ 12. Our conclusion is consistent with the fact that the Escalona-Naranjo rule has been applied retroactively by our courts in the past. Our supreme court clearly intended the rule to apply to cases that were final before the rule was announced because it used Escalona-Naranjo as a basis for its ruling in State v. Braun, 185 Wis. 2d 152, 516 N.W.2d 740 (1994), a companion case decided the same day. See Braun, 185 Wis. 2d at 157, 166. We conclude that the retroactive application of Escalona-Naranjo is appropriate here. Accordingly, Krieger, absent sufficient reason, cannot assert his constitutional claims in a Wis. Stat. § 974.06 motion if he did not raise them in his prior postconviction motion or on direct appeal. See Escalona-Naranjo, 185 Wis. 2d at 181-82.

CONCLUSION

¶ 13. We conclude that Krieger's petition for a writ of habeas corpus under Wis. Stat. § 782.01 was properly denied because he cannot show that he pursued other remedies available to him in the law. See McReynolds, 252 Wis. 2d 133, ¶ 12. We further conclude that the Escalona-Naranjo rule can be applied retroactively to Krieger's case because the rule is not one of criminal procedure, but rather is civil in nature; furthermore, our supreme court clearly intended the rule to have retroactive application.

By the Court. — Order affirmed.

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

       Wisconsin Stat. § 782.01(1) states: "Every person restrained of personal liberty may prosecute a writ of habeas corpus to obtain relief from such restraint subject to ss. 782.02 and 974.06.”

       Krieger submitted his brief-in-chief and appendix on December 3, 2003. Respondent Thomas G. Borgen filed a response brief on January 28, 2004. Two days after Borgen's brief was filed, our supreme court released its opinion in State v. Lagundoye, 2004 WI 4, 268 Wis. 2d 77, 674 N.W.2d 526. We provided the parties with the opportunity to submit supplemental briefs addressing the impact of Lagundoye on the issue of retroactivity. Accordingly, both parties filed supplemental briefs.


author: DEININGER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. John F. Powers, Defendant-Appellant.
    Court of Appeals

      No. 03-1514-CR.

      Submitted on briefs January 13, 2004.

      Decided July 29, 2004.

    2004 WI App 156
    (Also reported in 687 N.W.2d 50.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Marcus J. Berghahn and John D. Hyland oí Hurley, Burish & Milliken, S.C., Madison.
    On behalf of the plaintiff-respondent, the cause was submitted oh the brief of Edwin J. Hughes, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Deininger, PJ., Vergeront and Higgin-botham, JJ.
   DEININGER, PJ.

¶ 1. John Powers appeals an order denying his motion to dismiss a charge of second-degree sexual assault in violation of Wis. Stat. § 940.225(2)(g) (2001-02). The statute makes it a crime for an employee of a facility or program specified in the statute to have sexual contact or sexual intercourse with a patient or resident of the facility or program. Powers, an employee of a federal health care facility located in Wisconsin, contends that only employees of "inpatient health care facilities" that are licensed or regulated by the Wisconsin Department of Health and Family Services (DHFS) are subject to prosecution under § 940.225(2)(g). The State concedes Powers' argument and we concur that the trial court erred in failing to dismiss the charge. We therefore reverse the appealed order and direct that, on remand, the trial court shall dismiss count one of the information alleging a violation of § 940.225(2)(g).

BACKGROUND

¶ 2. At the time of Powers' alleged offense, Wis. Stat. § 940.225(2)(g) made it a Class BC (now Class C) felony for "an employee of a facility or program under s. 940.295(2)(b), (c), (h), or (k)" to have "sexual contact or sexual intercourse with a person who is a patient or resident of the facility or program." The referenced statute, Wis. Stat. § 940.295(2), identifies the following facilities or programs in the cited paragraphs: (b) an adult family home; (c) a community-based residential facility; (h) an inpatient health care facility; and (k) a state treatment facility. The amended complaint and information allege that Powers is an employee of "an inpatient health care facility," specifically, the "Tomah VA Medical Center."

¶ 3. The term, "inpatient health care facility," is defined by Wis. Stat. § 940.295(1)(i) as having "the meaning given in s. 50.135(1)." Wisconsin Stat. § 50.135(1), in turn, provides that the term "means any hospital, nursing home, county home, county mental hospital or other place licensed or approved by the [DHFS] under ss. 49.70, 49.71, 49.72, 50.02, 50.03, 50.35, 51.08 and 51.09, but does not include community-based residential facilities." The final links in this chain of statutory cross-references, in the order cited, refer to "county homes"; "county hospitals"; "county infirmaries"; "community-based residential facilities" and "nursing homes"; "hospitals"; the "Milwaukee County Mental Health Complex"; and "county.. . hospitals]... for the detention and care of mentally ill persons, alcoholics and drug addicts."

¶ 4. Powers is a physician's assistant. At the time of the alleged offense, he worked for the Tomah VA Medical Center, which is operated by the United States Department of Veterans Affairs. The State alleged in the complaint that Powers engaged in non-consensual sexual intercourse with a person who had recently undergone surgery at the VA Medical Center and had a scheduled follow-up appointment there. The State initially charged Powers with one count of third-degree sexual assault for the alleged act of intercourse without consent. See Wis. Stat. § 940.225(3). After filing the complaint, the State amended it to add an additional charge of second-degree sexual assault in violation of § 940.225(2)(g), a charge for which "[c]onsent is not an issue." See § 940.225(4). The State based the added charge on allegations that Powers was "an employee of a facility under 940.295, specifically an inpatient health care facility" and that the victim was a "patient of that inpatient health care facility."

¶ 5. After his arraignment on both counts, Powers moved to dismiss the added charge. He asserted that the court lacked "subject matter jurisdiction" because the VA Medical Center is neither an "inpatient health care facility" as alleged by the State nor any of the other facilities or programs referred to in Wis. Stat. § 940.225(2)(g). The trial court denied the motion, concluding in an oral ruling that Powers' employer was both an "inpatient health care facility" and a "state treatment facility" within the meaning of § 940.225(2)(g). Powers moved for reconsideration, which the trial court denied in a written order. We granted Powers petition for leave to appeal the trial court's non-final order. See Wis. Stat. Rule 809.50.

ANALYSIS

¶ 6. The State confesses error, conceding that the trial court erred in denying Powers' motion to dismiss. We, however, have a responsibility to independently review the record and the law even when error is confessed. See Rudolph v. State, 78 Wis. 2d 435, 447, 254 N.W.2d 471 (1977). The question before us is straightforward: Is an employee of a health care facility operated by the United States Department of Veterans Affairs subject to prosecution for an alleged violation of Wis. Stat. § 940.225(2)(g)? We agree with the parties that the answer is "no."

¶ 7. As he did in the trial court, Powers couches his argument on appeal in terms of jurisdiction, although he no longer specifies "subject matter jurisdiction" as he did in the trial court. We emphasize that the question before us does not implicate the circuit court's subject matter jurisdiction. That court plainly has subject matter jurisdiction over all allegations of criminal conduct in violation of Wisconsin Statutes. The circuit court would lack subject matter jurisdiction only if the crime charged is unknown in law, in other words, if it is a "nonexistent crime." See State v. Briggs, 218 Wis. 2d 61, 68, 579 N.W.2d 783 (Ct. App. 1998). Count one of the information, alleging a violation of Wis. Stat. § 940.225(2)(g), is not a crime unknown in law — there are persons to whom the statute plainly applies who may be prosecuted and convicted for the conduct that the statute criminalizes. The question before us is whether Powers is one of those persons. Thus, the issue is not whether the circuit court had subject matter jurisdiction but whether the State's amended complaint (or, perhaps, the testimony adduced at the preliminary hearing together with certain conceded facts) provide probable cause to believe that Powers violated § 940.225(2)(g).

¶ 8. The question of who may be charged withvio-lating Wis. Stat. § 940.225(2)(g) requires us to interpret the statute and the statutes to which it refers, a task we perform de novo. See Ocasio v. Froedtert Mem'l Lutheran Hosp., 2002 WI 89, ¶ 11, 254 Wis. 2d 367, 646 N.W.2d 381. The Wisconsin Supreme Court has recently instructed courts on how to proceed when interpreting a statute:

We assume that the legislature's intent is expressed in the statutory language .... Thus ... statutory interpretation begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry. Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning. Context is important to meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage. If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning....

State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶ 44-46, 271 Wis. 2d 633, 681 N.W.2d 110 (citations, quotation marks, paragraph breaks and numbering omitted).

¶ 9. We thus begin with the language of Wis. Stat. § 940.225(2)(g), which provides that, in order to commit this crime, one must be "an employee of a facility or program under s. 940.295(2)(b), (c), (h) or (k)." As we have explained, the cited paragraphs under Wis. Stat. § 940.295(2) identify four types of "facilities or programs": (1) adult family homes; (2) community-based residential facilities; (3) inpatient health care facilities; and (4) state treatment facilities. Of these, the only category into which Powers' employer, the Tomah VA Medical Center, might possibly fall is the third, inpatient health care facilities, which is what the State alleged in its amended complaint. An "inpatient health care facility" is "any hospital, nursing home, county home, county mental hospital or other place licensed or approved by the [DHFS] under ss. 49.70, 49.71, 49.72, 50.02, 50.03, 50.35, 51.08 and 51.09." Wis. Stat. § 50.135(1) (emphasis added); see § 940.295(l)(i).

¶ 10. Powers asserts that the Tomah VA Medical Center "is a federal facility over which the State does not exercise independent regulatory authority," and the State acknowledges that it "is undisputed that the Tomah VA hospital is subject to federal regulation, but is not licensed or regulated by the state." Although neither party cites evidence in the record (or legal authority) for this "undisputed" proposition, we will accept it as a stipulated fact. This means that, if the language of Wis. Stat. § 50.135(1) is interpreted as requiring that, in order to be an "inpatient health care facility," a facility must be licensed or approved by the Wisconsin DHFS, then the Tomah VA Medical Center is not one. If, on the other hand, as the State argued in the trial court, the phrase "licensed or approved by the [DHFS] under [enumerated statutes]" modifies only its immediate antecedent ("other place") and not the entire preceding list ("any hospital, nursing home, county home, county mental hospital or other place"), then all hospitals located in Wisconsin, whether licensed or approved by the DHFS or not, are "inpatient healthcare facilities," including the Tomah VA Medical Center.

¶ 11. We conclude that the plain meaning of the language in Wis. Stat. § 50.135(1), taken in proper context, requires that all of the specifically enumerated facilities ("hospital, nursing home, county home, county mental hospital") must be "places licensed or approved by" the DHFS in order to come within the definition of "inpatient health care facility." First, the word "other" before "places" strongly supports this interpretation because it suggests that the enumerated facilities and the additional "places" within the definition share the common characteristic of being "licensed or approved by" the DHFS. If that characteristic was not meant to be applied to all enumerated facilities, the word "other" should have been omitted, or perhaps replaced by "qny," in order to signify that the additional "other places" were the only ones to which the licensing or approval characteristic applied.

¶ 12. Second, when attempting to discern the meaning of a statute, we must do so with an eye to the context and structure of the statute. Kalal, 271 Wis. 2d 633, ¶ 46. Here, even though the end product of our work is the interpretation of a criminal statute, Wis. Stat. § 940.225(2)(g), the language at issue, incorporated by way of multiple cross-references, is found in Wis. Stat. ch. 50, which is titled "UNIFORM LICEN-SURE." Moreover, the caption of the specific statute whose meaning is at issue, Wis. Stat. § 50.135(1), is "Licensing and approval fees for inpatient health care facilities." The balance of § 50.135 establishes the annual fees that "inpatient health care facilities" must pay and exempts some from the required payments. Given this structure and context, it is simply not reasonable to read the definition of "inpatient health care facility" in § 50.135(1) as extending to any facility that is not subject to DHFS "licensing and approval."

¶ 13. Finally, we note that, in concluding that only an "other place" needs to be "licensed or approved by the department" in order to be an "inpatient health care facility" under Wis. Stat. § 50.135(1), and that a "hospital" need not be, the trial court essentially applied the principle of "last preceding antecedent." Under that canon of construction, qualifying or limiting words and phrases are deemed to refer only to the immediately preceding antecedent, unless a contrary legislative intent appears. 2A Norman J. Singer, Statutes and Statutory Construction § 47.33, at 369 (6th ed. 2000). However, the rule is not "inflexible and uniformly binding," id. at 372, and "[w]here the sense of the entire act requires that a qualifying word or phrase apply to several preceding or even succeeding sections, the word or phrase will not be restricted to its immediate antecedent," id. We conclude that, given the context and structure of § 50.135 that we have described, the general rule of applying a limiting or qualifying phrase to only the last preceding antecedent would be contrary to "the sense of the entire" statute. See, e.g., Service Inv. Co. v. Dorst, 232 Wis. 574, 577, 288 N.W. 169 (1939) ("Although as a general rule of construction a modifying clause is considered ordinarily to be confined to the last antecedent, that rule is not always applicable and may be easily rebutted where other circumstances so indicate.").

¶ 14. We next consult the State of Wisconsin Legislative Reference Bureau's "Bill Drafting Manual (2001-02)" to see if it provides additional insight to the meaning of the language at issue. We note first that the manual directs bill drafters to employ the term "means" instead of "includes" whenever enumerated items in a definition are intended to render the definition "complete." Id., § 2.01(i). The manual notes that" 'includes' allows a court or administering agency to adopt additional meanings; using 'means' restricts them to reasonable constructions of your wording." Id. Because Wis. Stat. § 50.135(1) employs the term "means," it is apparent that "inpatient health care facilities" are limited to those facilities specifically identified in the subsection, as opposed to including any facilities that are only similar to those enumerated.

¶ 15. This conclusion is of some assistance because it means that, if the qualifying phrase, "licensed or approved by the department," applies to each enumerated facility, such as a "hospital," then we are not free to say that any hospital that is not licensed or approved by DHFS is also an "inpatient health care facility" if it is similar to those that are.

¶ 16. We turn next to the manual's discussion of "modifiers." Drafters are advised that they should "[b]e careful that you modify only the words that you intend to modify." Id., § 2.01(17m)(a). The manual provides the example of the phrase, "an 18-year-old parolee, probationer, or convict," which it suggests is ambiguous because it is not clear whether each category of persons must be eighteen years old or only parolees must be that age. Id. The manual then recommends that, if the intent is to modify all terms, a formulation such as the following be employed: "a person who is a parolee, probationer, or convict and who is at least 18 years old." Id. at (b). If the intent is to modify only one of the listed terms, however, the following is recommended as preferable: "a probationer who is at least 18 years old, a parolee or a convict." Id. at (c).

¶ 17. Unfortunately, neither of these precise formulations is employed in Wis. Stat. § 50.135(1). Although the modifier ("licensed or approved by the department") comes at the end of the enumerated facilities, it is not introduced by "and that is" or other words that would expressly apply it to each enumerated facility. Even so, we conclude that, under the manual's guidance to drafters, to convey a meaning that only "other places" need be "licensed or approved by the department" in order to be "inpatient health care facilities," and that the enumerated facilities need not be, the definition in § 50.135(1) would read something like this: " 'Inpatient health care facility' means any place licensed or approved by the department under [enumerated statutes], and any hospital, nursing home, county home, or county mental hospital."

¶ 18. We conclude that the use of a formulation in Wis. Stat. § 50.135(1) that does not clearly assign the modifier to only "other places," as recommended by the Bill Drafting Manual, supports our interpretation that "licensed or approved by the department" applies to all enumerated facilities as well as to "other place."

¶ 19. The State argued in the trial court, however, that it would be absurd to read Wis. Stat. § 940.225(2)(g) as criminalizing sexual contact or intercourse between employees of only state-licensed inpatient health care facilities and their patients. We acknowledge that there is no readily apparent rationale for not criminalizing the same conduct if engaged in by an employee of an inpatient health care facility that is located in Wisconsin but is not licensed by DHFS (or for that matter, for rendering the conduct criminal when engaged in by employees of "state treatment facilities," but not when committed by employees of other publicly or privately operated "treatment facilities" (see footnotes 3 and 6)). We are to give effect, however, to the plain meaning of the language the legislature enacted, not what its members may have intended to enact. See Kalal, 271 Wis. 2d 633, ¶ 44.

¶ 20. Accordingly, we conclude that the trial court erred in not dismissing count one of the information, alleging a violation of Wis. Stat. § 940.225(2)(g). Although the complaint alleges that Powers was an employee of the Tomah VA Medical Center, that facility is not "an inpatient health care facility," or any other type of "facility or program" to which § 940.225(2)(g) applies. The State's amended complaint, therefore, does not state probable cause that Powers committed this crime. Even though Powers acknowledges that he was properly bound over for trial on a transactionally related felony (see footnote 5), the State has conceded in this appeal that it cannot prove at trial that Powers violated § 940.225(2)(g) because the statute does not apply to him. The charge under § 940.225(2)(g) must be dismissed.

CONCLUSION

¶ 21. For the reasons discussed above, we reverse the appealed order and remand for further proceedings consistent with this opinion. We direct that on remand, the court shall dismiss count one of the information, alleging a violation of Wis. Stat. § 940.225(2)(g).

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

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

        See Wis. Stat. §§ 50.135(1) and 940.295(l)(i) and (2)(h), which are quoted in the Background section of this opinion.

       Although not the asserted basis of the State's added charge, Wis. Stat. § 940.225(2) (g) also applies to employees of a "state treatment facility." See Wis. Stat. § 940.295(2)(k). The term is statutorily defined to mean "any of the institutions operated by the [Department of Health and Family Services (DHFS)] for the purpose of providing diagnosis, care or treatment for mental or emotional disturbance, developmental disability, alcoholism or drug dependency and includes but is not limited to mental health institutes." See Wis. Stat. §§ 51.01(15) and 940.295(l)(r).

        See Village of Trempealeau v. Mikrut, 2004 WI 79, ¶ 1, 273 Wis. 2d 76, 681 N.W.2d 190 ("Circuit courts in Wisconsin are constitutional courts with general original subject matter jurisdiction over 'all matters civil and criminal.' Wis. Const, art. VII, § 8. Accordingly, a circuit court is never without subject matter jurisdiction.").

       We note that Powers did not challenge the sufficiency of the amended complaint for failing to state probable cause that he had violated Wis. Stat. § 940.225(2)(g). A motion making that claim should have been filed prior to Powers' preliminary hearing, but Powers first moved to dismiss the charge after his preliminary hearing and arraignment, thus arguably waiving a challenge to the amended complaint. See Wis. Stat. § 971.31(5)(c) (providing that in "felony actions, objections based on the insufficiency of the complaint shall be made prior to the preliminary examination or waiver thereof or be deemed waived"). Powers also did not contend in the trial court that the preliminary hearing testimony failed to establish probable cause to believe that he had committed a felony. In fact, his counsel conceded at the close of the preliminary hearing that the court "has sufficient information based on the preliminary hearing to indicate that there's probable cause on Count II," which charged third-degree sexual assault, also a felony. Thus, there is no dispute that Powers was properly bound over for trial on at least one felony. See State v. (John) Williams, 198 Wis. 2d 516, 536, 544 N.W.2d 406 (1996).
      A prosecutor may include in an information any counts that are "transactionally related to a count on which the defendant is bound over," regardless of whether the State established probable cause at the preliminary hearing to believe that the defendant committed the transactionally related felonies. Id. at 537; see also State v. (Scott) Williams, 198 Wis. 2d 479, 483, 544 N.W.2d 400 (1996) (holding "that the State need only establish probable cause that a felony occurred as to one count in a set of transactionally related counts for there to be a valid bind over on that set, and need not establish probable cause that the specific felony alleged in each count was committed"). There can be no question that count one of the information, alleging a violation under Wis. Stat. § 940.225(2)(g) is "transactionally related" to count two, third-degree sexual assault. Both counts arose from a "common nucleus of facts" in that they involve the same victim and the same alleged act, and thus obviously took place at the same time and location. See (John) Williams, 198 Wis. 2d at 525.
      Thus, it could be argued that Powers was not entitled to raise the issue of whether the charge under Wis. Stat. § 940.225(2)(g) is viable, and that he must wait and make that challenge at trial by moving to dismiss the challenged count at the close of the State's case. As we have noted, however, the State concedes that an employee of a federally operated facility cannot be convicted of violating § 940.225(2)(g). Moreover, the State makes no complaint about the procedural posture of the case as it may affect consideration of the issue now before us. Assuming that the State will present at trial the same testimony it adduced at the preliminary hearing, as well as additional, undisputed facts relating to Powers' employer, we conclude that the challenged count should be dismissed on defense motion. We granted leave to appeal the issue now rather than "on an appeal from the final judgment in the case," however, because a determination of the issue raised by Powers' motion to dismiss will "clarify further proceedings [in this case and] ... clarify an issue of general importance in the administration of justice." Wis. Stat. Rule 809.50(1)(c). We see little point in postponing the statutory interpretation issue until trial or review of it until after a possible conviction. We therefore do not address any timing or waiver issues that may be suggested by the record.

       As we have noted, the trial court concluded that the Tomah VA Medical Center was also a "state treatment facility." In so doing, however, the court apparently consulted the definition of "treatment facility" in Wis. Stat. § 51.01(19), which defines this broader term as covering "any publicly or privately operated facility" that provides certain types of treatment. But "treatment facilities" are not among the "facilities or programs" whose employees are chargeable under Wis. Stat. § 940.225(2)(g); only employees of "state treatment facilities" are subject to the criminal statute at issue. This is because "treatment facility" is identified in Wis. Stat. § 940.295(2)(L), which is not one of the four paragraphs in that subsection to which § 940.225(2)(g) refers. A "state treatment facility," which is identified in § 940.295(2)(k) and is thus included within the scope of § 940.225(2)(g), is an "institution operated by" the DHFS. Section 51.01(15) (see footnote 3). There is no dispute that the Tomah VA Medical Center is not operated by the DHFS but by the U.S. Department of Veterans Affairs. We acknowledge the difficulty of the cross-referenced journey that courts and counsel must take in attempting to determine the scope of § 940.225(2)(g). (See footnote 10.)

       We note that we have not found an express exemption from licensing and regulation in applicable Wisconsin Statutes for federally operated veterans' hospitals. See, e.g., Wis. Stat. §§ 50.135, 50.32 through 50.39. The federal government, however, has apparently established its own structure governing the administration and regulation of veterans' hospitals and medical facilities. See 38 U.S.C. § 301, et seq. (establishing the Department of Veterans Affairs); chapter 81 of 38 U.S.C. § 301 (authorizing the acquisition and operation of hospital facilities for veterans). A fundamental principle underlying our federal system of government is "that the [U.S. Constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them." M'Culloch v. Maryland, 17 U.S. 316, 426 (1819). Just like the power to tax, the power to license and regulate seemingly "involves the power to destroy." Id. at 431. It would thus appear that federally operated veterans hospitals are shielded by the Supremacy Clause from state licensing and regulation, unless Congress provides clear and unambiguous authorization for state regulation, which we are not aware it has done. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 180 (1988).

       We do not view the LRB "Bill Drafting Manual" to be an "extrinsic source" akin to legislative history materials, which a court should not consult except in cases of ambiguity, or, perhaps, to confirm an interpretation based on the plain meaning of the language at issue. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 50, 271 Wis. 2d 633, 681 N.W.2d 110. Rather, the manual is a reference work that assists us in ascertaining the "common and accepted meaning" of words and phrases employed in the Wisconsin Statutes, much as would a dictionary. See id., ¶¶ 53-54. Put another way, the Bill Drafting Manual does not purport to assist us in determining what legislators were thinking when they enacted Wis. Stat. § 50.135(1). Rather, the manual assists us in determining the meaning of the statutory language itself by revealing the standards and definitions relied on by those who choose and arrange the words, phrases and punctuation found in the Wisconsin Statutes.

       We note that § 2.01(17m)(d) of the Bill Drafting Manual also calls to the attention of bill drafters the principle of "last preceding antecedent," which we have discussed above. The manual informs drafters that, under Wisconsin case law, "qualifying or limiting words in a statute generally refer to the nearest antecedent only," citing Vandervelde v. Green Lake, 72 Wis. 2d 210, 214-15, 240 N.W.2d 399 (1976), but that there are exceptions, such as in Lund v. Kokemoor, 195 Wis. 2d 727, 537 N.W.2d 21 (Ct. App. 1995), where we concluded that "economic" modifies both "injuries" and "damages" in the phrase "or economic injuries and damages."

       We observe that the scope of Wis. Stat. § 940.225(2)(g) seems unnecessarily obscure due to the multiple statutory cross-references employed to establish it. The legislature may wish to revisit § 940.225(2)(g) to determine whether the language of the statutes incorporated by reference accurately reflect the intended scope of this criminal statute. Moreover, if the legislature chooses to consider amending § 940.225(2) (g), it may also wish to consider another issue that arguably arises from the present facts. The sexual assault of which Powers is accused did not take place on the premises of the Tomah VA Medical Center but at the home of a person who had recently undergone surgery at the center. The "facilities or programs" identified by cross-reference in § 940.225(2)(g) all appear to be residential or "inpatient" facilities. However, the definition of "patient" includes any one who "[r]eceives care or treatment from a facility or program." Section 940.225(5)(am)l. The legislature may wish to clarify whether it intends that § 940.225(2)(g) apply to conduct occurring at locations other than the premises of the identified facilities, or at times when the "patient" is not an admitted inpatient or resident of a covered facility or program. Finally, should § 940.225(2) (g) receive future legislative attention, we note that Powers asserts in his brief that there is no express "marital exception" to coverage of the statute, see § 940.225(6), or one for conduct occurring outside what he refers to as "the scope of employment," as he argues there should be.

       Because we conclude that Wis. Stat. § 940.225(2)(g) does not apply to an employee of a hospital that is not state licensed or approved, we do not address Powers' alternative arguments that his alleged conduct falls outside the reach of § 940.225(2)(g) because it did not occur within the scope of his employment, and that forcing him to defend both charges violates his constitutional right to due process.