author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against James M. DeGracie, Attorney at Law: Office of Lawyer Regulation, Complainant, v. James M. DeGracie, Respondent.
    Supreme Court

      No. 02-2231-D.

      Decided April 23, 2004.

    2004 WI 44
    (Also reported in 678 N.W.2d 252.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that the license of Attorney James M. DeGracie be suspended for eight months as discipline for his professional misconduct. That misconduct as alleged in the Office of Lawyer Regulation's (OLR) complaint filed against Attorney James M. DeGracie on August 22,2002, involved six counts of misconduct with respect to his representation of two clients as well as DeGracie's response to the OLR investigation of grievances filed by those clients. Attorney David R. Friedman was appointed as referee in this matter. After a telephone conference of which DeGracie had notice but did not participate, the referee granted the OLR's motion for default judgment based on DeGracie's failure to appear or participate. In the report the referee has filed in this court, the referee concluded, that DeGracie should be deemed to have committed the acts of misconduct as alleged. The referee recommends that DeGracie's license to practice law in this state be suspended for eight months and that he be ordered to pay the costs of this proceeding which total $586.23.

¶ 2. We determine that the misconduct as established in this disciplinary proceeding warrants a suspension of DeGracie's license to practice law in this state for eight months. We also agree that DeGracie should be required to pay the costs of this disciplinary proceeding in the amount specified.

¶ 3. The respondent, James M. DeGracie, was admitted to practice law in this state on July 6, 1990, and has not previously been the subject of professional discipline. His license to practice law, however, was suspended in 2002 for his failure to pay bar dues and for noncompliance with continuing legal education requirements. Although he initially practiced in Black River Falls, DeGracie subsequently moved and is reportedly currently residing in California.

¶ 4. After the OLR filed its complaint along with an order to answer in this court, Attorney David R. Friedman was appointed as referee in the matter. By certified mail, return receipt requested, the referee sent a notice of hearing to DeGracie's Black River Falls office as well as his California address. The certified letter to the California address was returned but the referee thereafter received a signed certified mail return receipt card signed by one Nancy J. DeGracie. Ms. DeGra-cie signed for the certified letter that contained notice of the telephone conference the referee had scheduled.

¶ 5. On December 18, 2002, the referee conducted the scheduled telephone hearing and although the OLR appeared, DeGracie did not call in nor otherwise appear. Based on DeGracie's failure to answer OLR's complaint and his failure to appear at the hearing, the referee granted the OLR's motion for summary judgment.

¶ 6. Thereafter the referee filed his report in this court regarding DeGracie's misconduct as alleged in the OLR's complaint. The OLR's complaint alleged, and the referee has now found, the following acts of misconduct by DeGracie involving two clients and his failure to respond to the OLR investigations.

CLIENT W.O. — COUNTS ONE AND TWO

¶ 7. The OLR complaint alleged that in 1994 W.O. was convicted of a criminal offense in Jackson County Circuit Court and placed on probation; in 1999 WO.'s probation was revoked and he was sentenced to two years in prison. Subsequently, on April 13, 2000, DeGrade was appointed as WO.'s appellate public defender. On April 23, 2000, W.O. sent a letter to DeGracie asking for speedy attention to W.O.'s postconviction remedies and requesting that DeGracie file a motion seeking modification of the sentence. In that letter W.O. stated that his mandatory release date would be December 12, 2000; he asserted that he wanted to appear before the sentencing judge as soon as possible. DeGra-cie did not respond to WO.'s letter.

¶ 8. Thereafter, on May 12, 2000, pursuant to a request from the Office of the State Public Defender (SPD), DeGracie received the court record and the transcripts in W.O.'s case. On May 29, 2000, W.O. wrote to the SPD because he had not heard from DeGracie. On June 16, 2000, DeGracie met with WO. DeGracie told WO. that if they were successful on appeal, it was possible that W.O. could be re-sentenced for more time than originally imposed. After this meeting, W.O. anticipated that he would soon be returned to Jackson County for a hearing on his motion for sentence modification.

¶ 9. During the fall of 2000 W.O. attempted to make numerous collect calls to DeGracie but DeGracie's telephone was blocked from receiving such calls. On September 12, 2000, W.O. wrote to DeGracie complaining that he had heard nothing from him since their meeting on June 16, 2000; WO. asked DeGracie to respond but again DeGracie did not reply.

¶ 10. On September 26, 2000, W.O. again wrote to the SPD complaining about DeGracie's lack of communication with him. Deputy First Assistant State Public Defender (ASPD) Kenneth Lund then wrote to DeGra-cie on October 9, 2000, stating that WO. had complained about DeGracie's representation; ASPD Lund asked DeGracie to respond to WO. and to provide a copy of that response to ASPD Lund. DeGracie did not respond to ASPD Lund's letter.

¶ 11. On October 19, 2000, WO. wrote to ASPD Lund and asked him to withdraw WO.'s appeal. W.O. explained that he was approaching his mandatory release date and feared that if he were successful on appeal, he might be re-sentenced to the maximum penalty of six years in prison.

¶ 12. On November 9, 2000, ASPD Lund sent a follow-up letter to DeGracie pointing out that DeGracie had not responded to ASPD Lund's October 9, 2000, letter. Once again, ASPD Lund asked DeGracie to reply to W.O. and to provide a copy of that response to ASPD Lund; again DeGracie did not respond.

¶ 13. Thereafter, W.O. filed a grievance against DeGracie. Although DeGracie provided an initial written response to that grievance, by letter dated September 10, 2001, the OLR staff requested additional information from DeGracie relating to W.O.'s grievance. DeGracie did not reply to this request for additional information.

¶ 14. On October 2, 2001, the OLR staff sent a follow-up certified letter to DeGracie requesting his response to the September 10, 2001, letter. Although DeGracie signed the return receipt for this certified letter, he did not reply. DeGracie never withdrew from representation of WO. nor did he submit any closing documents to the SPD about that representation.

¶ 15. In response to subsequent inquiries from the OLR district committee investigator, DeGracie stated that he intended to wrap up his remaining files, close his legal practice in Wisconsin and move to California. DeGracie said, however, that he wished to retain his Wisconsin license.

¶ 16. Based on this course of conduct, the OLR complaint alleged, and the referee has now found, that DeGracie committed the following acts of misconduct:

Count One: By failing to communicate in any manner with W.O. after June 16, 2000; by failing to respond to WO.'s September 12, 2000, letter; and by failing to communicate with WO. after DeGracie received letters from ASPD Lund in the fall of 2000 that indicated that WO. had requested assistance from the SPD when he had been unable to reach DeGracie, DeGracie failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).
Count Two: By failing to respond to two grievance investigative letters sent to him by the OLR in September and October of 2001, DeGracie failed to cooperate with an OLR investigation, in violation of SCR 21.15(4); failed to answer further investigative questions, in violation of SCR 22.03(2); and willfully failed to provide relevant information during a grievance investigation, in violation of SCR 22.03(6).

CLIENT R.E. — COUNTS THREE THROUGH SIX

¶ 17. The OLR complaint alleged that in April 1998 R.E. was convicted of a criminal offense and placed on probation; later, following a probation violation, R.E. was sentenced in May 1999 to five years in prison. R.E. filed a notice of intent to appeal his conviction and in May 2000, DeGracie was appointed by the SPD to represent R.E. in his attempts to obtain sentence modification and postconviction relief.

¶ 18. DeGracie, however, failed to file any pleadings on R.E.'s behalf; DeGracie also failed to respond to R.E.'s letters, accept some of R.E.'s collect calls, or return a copy of R.E.'s file to him.

¶ 19. On April 6, 2001, ASPD Lund wrote to DeGracie enclosing a copy of the letter ASPD Lund had received from R.E. regarding DeGracie's inaction in R.E.'s case. ASPD Lund asked DeGracie to reply to R.E. and provide a copy of that response to ASPD Lund; DeGracie did not do so.

¶ 20. On June 7, 2001, ASPD Lund sent a follow-up letter to DeGracie stating that he received another letter of complaint from R.E.; again ASPD Lund asked DeGracie to write to R.E. and copy ASPD Lund with the response.

¶ 21. On August 1, 2001, R.E. wrote to ASPD Lund stating that he was "getting the same runaround" from DeGracie who had told R.E. that he was waiting for a court date. R.E. also reported that DeGracie claimed that he had mailed a copy of the file to R.E.

¶ 22. On August 7, 2001, ASPD Lund telephoned DeGracie. DeGracie told Lund that he had twice sent copies of the file to R.E. DeGracie also told ASPD Lund that he had now gathered the information he needed and would be filing a motion for sentence modification on R.E.'s behalf later that week. ASPD Lund then informed DeGracie that because DeGracie had allowed time deadlines to expire, the SPD was not authorized to pay for the sentence modification motion. DeGracie replied to ASPD Lund that he would nevertheless file the motion and complete the work pro bono. ASPD Lund then sent R.E. a letter detailing that conversation with DeGracie.

¶ 23. After three weeks had elapsed since their telephone conversation, ASPD Lund wrote to DeGracie on August 27, 2001, stating that if Lund did not receive a copy of a filed motion on behalf of R.E. from DeGracie within a week, Lund would take steps to decertify DeGracie from taking SPD cases.

¶ 24. On September 10, 200,1, First Assistant State Public Defender Joseph Ehmann telephoned De-Gracie regarding R.E.'s case. DeGracie told Ehmann that he had filed the sentence modification motion on behalf of R.E. and that he would send a copy of that motion to the SPD's office. Thereafter Ehmann telephoned DeGracie on September 17, September 25, and October 9, 2001, and each time DeGracie reported to Ehmann that he had filed the motion on behalf of R.E.

¶ 25. On December 7, 2001, Ehmann wrote to DeGracie stating that the phone calls and letters throughout September, October, and November 2001, revealed that DeGracie had not followed through regarding his obligation to his client and that DeGracie had never sent a copy of any motion to the SPD as he had promised. Ehmann asked DeGracie for information about what he had done in R.E.'s case.

¶ 26. Subsequently, R.E. filed a grievance with the OLR against DeGracie. An OLR intake investigator spoke by telephone with DeGracie on October 8, 2001. DeGracie told the investigator that R.E.'s case involved a motion for re-sentencing and that the case was still pending; DeGracie also acknowledged that he had received a letter from ASPD Lund.

¶ 27. DeGracie told the OLR investigator that he was planning to withdraw from the practice of law in Wisconsin in the near future and that R.E.'s matter had been set aside and that DeGracie's secretary had copied R.E.'s file and the file would be sent to R.E. soon. DeGracie also told the investigator that he would complete the sentence modification motion and then move to withdraw from R.E.'s case. DeGracie also said he would fax copies of the motion for sentence modification to the OLR when the motion was filed along with a cover letter to R.E. returning his file. The OLR did not receive the items as promised from DeGracie.

¶ 28. On October 31, 2001, the OLR sent a copy of R.E.'s grievance to DeGracie and requested his written response on or before November 23, 2001; again DeGra-cie did not respond. Then on November 27, 2001, the OLR sent letters to DeGracie by first-class mail and by certified mail requesting that his response be postmarked no later than December 7, 2001; these letters reminded DeGracie of his duty to cooperate with the OLR investigation. Again DeGracie did not reply.

¶ 29. The OLR's investigation of the R.E. grievance was thereafter assigned to an OLR district committee and on March 6, 2002, DeGracie told the district committee investigator that he was wrapping up his practice and that he would not deny any of the misconduct allegations relating to R.E.'s grievance.

¶ 30. Subsequently, on March 12, 2002, the attorney who shared office space with DeGracie in Black River Falls told the OLR that DeGracie had closed his practice on March 6, 2002, and had moved to California leaving no forwarding address or telephone number. Several months later, that attorney's office informed the OLR of a forwarding address for DeGracie in California.

¶ 31. Based on this course of conduct, the OLR complaint alleged, and the referee has now found, that DeGracie committed the following acts of misconduct:

Count Three: By failing to take any action on R.E.'s behalf, despite receiving numerous inquiries from R.E. and the SPD, DeGracie failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
Count Four: By failing to respond to letters from R.E., and by failing to communicate with R.E. after receiving letters from the SPD indicating that R.E. had requested assistance from that agency regarding his case, DeGra-cie failed to keep a client reasonably informed about the status of a matter and failed to promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).
Count Five: By telling ASPD Ehmann by telephone on September 10, September 17, September 25, and October 9, 2001, that he had filed a motion on R.E.'s behalf, when in fact, DeGracie had not done so, DeGracie engaged in conduct involving dishonestly, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).
Count Six: By failing to respond to two grievance investigative letters sent to him by the OLR in October and November 2001, DeGracie willfully failed to cooperate with the OLR in the investigation of grievances, in violation of SCR 21.15(4); failed to answer further investigative questions, in violation of SCR 22.03(2); and willfully failed to provide relevant information during a grievance investigation, in violation of SCR 22.03(6).

¶ 32. Based on this course of misconduct, the referee concluded that the OLR's recommendation for a six-month suspension of DeGracie's license to practice law in this state was an inadequate sanction for his misconduct. The referee reasoned that because the liberty of two of DeGracie's clients was at stake, and because the clients and public had the right to expect DeGracie to be honest and to perform his duties, an eight-month suspension of DeGracie's license was a more appropriate sanction in order to "impress on DeGracie what his lies did to the clients."

¶ 33. We adopt the findings of fact and conclusions of law set forth in the referee's report and we agree with the referee and determine that the seriousness of DeGracie's misconduct as established in this proceeding warrants a suspension of his license to practice law in this state for a period of eight months. We also agree and direct that DeGracie be ordered to pay the costs of this disciplinary proceeding now totaling $586.23.

¶ 34. IT IS ORDERED that the license of James M. DeGracie to practice law in Wisconsin is suspended for a period of eight months commencing as of the date of this opinion.

¶ 35. IT IS FURTHER ORDERED that within 60 days of the date of this opinion, James M. DeGracie pay to the Office of Lawyer Regulation the costs of this proceeding totaling $586.23, providing that if the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within the time, the license of James M. DeGracie to practice law in Wisconsin shall remain suspended until further order of this court.

¶ 36. IT IS FURTHER ORDERED that if he has not already done so, James M. DeGracie must comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law has been suspended.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Virginia Rose Ray, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Virginia Rose Ray, Respondent.
    Supreme Court

      No. 03-1743-D.

      Decided April 23, 2004.

    2004 WI 45
    (Also reported in 678 N.W.2d 246.)
   PER CURIAM.

¶ 1. We review the findings of fact, conclusions of law, and recommendations of Referee Catherine M. Rottier for sanctions, pursuant to SCR 22.17(2). Attorney Virginia Rose Ray was found to have engaged in professional misconduct in the course of her practice of law in violation of the Rules of Professional Conduct. The referee recommended a five-month suspension of her license to practice law, the payment of restitution, and the payment of the costs of the Office of Lawyer Regulation (OLR).

¶ 2. We approve the findings of fact and conclusions of law of the referee. However, we determine that the misconduct of Attorney Ray warrants the imposition of a six-month suspension of her license.

¶ 3. Attorney Ray was licensed to practice law in Wisconsin in 1988. Pursuant to In re Disciplinary Proceedings Against Ray, 2002 WI 116, 256 Wis. 2d 19, 651 N.W.2d 727, her license was suspended for 60 days. The suspension has not yet been lifted because she has not satisfied the conditions of the order and has not petitioned for such relief. That case involved 12 ethical violations. Six concerned Attorney Ray's failure to cooperate with the Board of Attorneys Professional Responsibility, two were trust account violations, two were excessive fee violations, and two were violations of the prohibition against an offensive personality and failure to maintain respect.

¶ 4. The current disciplinary matter concerns three counts arising out of matters that occurred prior to imposition of the 2002 suspension: (1) charging an unreasonable fee, in violation of SCR 20:1.5(a); (2) improper termination of representation, in violation of SCR 20:1.16(d); and (3) refusal to cooperate with the OLR's investigation of the grievance, in violation of SCR 21.15(4) and SCR 22.03. Neither side has appealed from the referee's report.

¶ 5. The court will adopt the referee's findings of fact unless they are clearly erroneous. In re Disciplinary Proceedings Against Charlton, 174 Wis. 2d 844, 498 N.W.2d 380 (1993). The court does not grant deference to the referee's conclusions of law and reviews them on a de novo basis. In re Disciplinary Proceedings Against Norlin, 104 Wis. 2d 117, 310 N.W.2d 789 (1981). The court also may impose whatever sanction it sees fit regardless of the referee's recommendation. In re Dis ciplinary Proceedings Against Widule, 2003 WI 34, 261 Wis. 2d 45, 660 N.W.2d 686.

¶ 6. This case concerns Attorney Ray's representation of a divorce client. She and her client entered into a written agreement under which he would pay her a flat fee of $5000 for representation through entry of the judgment of divorce.

¶ 7. Per the agreement, Attorney Ray began representing the client in January 2002. Most of her efforts thereafter were devoted to an attempt to free the client from a default judgment for which she was not responsible. However, the client was still entitled to proceed to trial but only on financial matters arising out of the divorce.

¶ 8. In mid-April Attorney Ray sought to withdraw from representing the client. She apparently had become aware of financial matters concerning the client that were contrary to representations he had made to her. The client apparently did not object to Attorney Ray withdrawing and she indicated she would assist him in finding new counsel. She also told the client she would refund $4000 of the retainer.

¶ 9. The two were not immediately successful in obtaining new counsel and that required Ray to continue to represent him as necessary. By early May the client had new counsel and that ended Attorney Ray's representation. She agreed to facilitate the change in counsel but now refused to refund any of the retainer. This led the client to submit a grievance to the OLR.

¶ 10. The OLR sent letters to Ray in July and August 2002 requesting a response but she did not respond. She was also asked to attend a district committee meeting a few months later but did not attend.

¶ 11. The OLR alleged in count one that the original fee arrangement was unreasonable. However, the referee found that the OLR offered no evidence proving that Attorney Ray charged more than other attorneys would have charged for the same services. Rather, the OLR had conceded that the $5000 was unreasonable only because it was intended to cover for services through entry of judgment and Attorney Ray did not provide services for that period.

¶ 12. Accordingly, the referee concluded, as a matter of law, that the OLR had not met its burden of proof on count one since there was nothing inherently unreasonable about the fee.

¶ 13. We do not find the referee's findings of fact to be clearly erroneous. We further agree with the referee's conclusion that there was no violation of SCR 20:1.5(a).

¶ 14. The OLR further alleged in count two that Attorney Ray improperly terminated her representation given that SCR 20:1.16(d) requires that an attorney refund any unearned advance payment of fee.

¶ 15. The referee found as a matter of fact that there had been no refund of the unearned fee and further concluded, as a matter of law, that the rule was violated.

¶ 16. With respect to the exact amount of the unearned fee, the referee concluded that Attorney Ray had spent at least 12.5 total hours in representing the client and, at a reasonable rate of $200 per hour, the value of her services was $2500. The referee therefore concluded that the remaining $2500 should be refunded to the client.

¶ 17. The referee's findings of fact with respect to this count are not clearly erroneous. Given the evidence presented at the hearing, the establishment of $2500 as the unearned fee is reasonable. We further agree with the referee that there was, as a matter of law, a violation of SCR 20:1.16(d).

¶ 18. The OLR further alleged in count three that Attorney Ray failed to cooperate with the investigation of the grievance. Given that she admitted her lack of cooperation, the referee found and concluded that a violation of SCR 21.15(4) and SCR 22.03 had occurred.

¶ 19. The OLR had asked that the referee recommend a nine-month suspension, restitution of $4000 to the client, and payment of the costs of the disciplinary proceeding. It contended that progressive discipline was required given that Attorney Ray previously had been suspended, thereby demonstrating a pattern of misconduct particularly with respect to failing to cooperate with the OLR.

¶ 20. The referee concluded that a nine-month suspension "is too much and verges on the punitive, rather than the rehabilitative." The referee therefore recommended a five-month suspension along with restitution of $2500 and payment of the costs.

¶ 21. We agree that restitution and payment of costs is an appropriate part of the sanction to be imposed in this case. However, we believe that a five-month suspension is insufficient and that the period of suspension should be six months.

¶ 22. Prior disciplinary cases have frequently followed a progressive discipline scheme. See e.g., In re Disciplinary Proceedings Against Louderman, 230 Wis. 2d 200, 601 N.W.2d 625 (1999) (public reprimand follows three private reprimands). Given that this is Attorney Ray's second disciplinary matter, a suspension in excess of the previous two-month suspension is clearly warranted. A six-month suspension will require Attorney Ray, pursuant to SCR 22.28(3), to formally petition for reinstatement, rather than simply be reinstated upon the OLR's affirmation that she has complied with the conditions of the suspension order. Given her substantial recent disciplinary hearing, a full reinstatement proceeding under SCR 22.29 will serve to verify to the legal community and the public that Attorney Ray can again be entrusted with the responsibilities that accompany the practice of law in this state. This will he in addition to any conditions she must yet satisfy to be relieved from the 2002 suspension.

¶ 23. IT IS ORDERED that the license of Attorney Virginia Rose Ray to practice law in Wisconsin is suspended for a period of six months, effective the date of this order.

¶ 24. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Ray shall refund to the client involved in this matter the unearned retainer of $2500.

¶ 25. IT IS FURTHER ORDERED that Attorney Ray shall comply with the provisions of SCR 22.26 concerning the duties of an attorney whose license to practice law has been suspended, to the extent she has not already done so arising out of the prior suspension.

¶ 26. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Ray shall pay to the OLR the costs of this proceeding in the amount of $4721.59.

       SCR 22.17(2) provides:
      (2) If no appeal is filed timely, the supreme court shall review the referee's report; adopt, reject or modify the referee's findings and conclusions or remand the matter to the referee for additional findings; and determine and impose appropriate discipline. The court, on its own motion, may order the parties to file briefs in the matter.

       SCR 20:1.5(a) provides:
      (а) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
      (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
      (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
      (3) the fee customarily charged in the locality for similar legal services;
      (4) the amount involved and the results obtained;
      (5) the time limitations imposed by the client or by the circumstances;
      (б) the nature and length of the professional relationship with the client;
      (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
      (8) whether the fee is fixed or contingent.

       SCR 20:1.16(d) provides:
      (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

       SCR 21.15(4) provides:
      (4) Every attorney shall cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances, complaints filed with or by the director, and petitions for reinstatement. An attorney's wilful failure to cooperate with the office of lawyer regulation constitutes violation of the rules of professional conduct for attorneys.

       SCR 22.03 provides: Investigation.
      (1)The director shall investigate any grievance that presents sufficient information to support an allegation of possible misconduct.
      (2) Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation.
      (3) Staff involved in the investigation process shall include in reports to the director all relevant exculpatory and inculpatory information obtained.
      (4) If the respondent fails to respond to the request for written response to an allegation of misconduct or fails to cooperate in other respects in an investigation, the director, or a special investigator acting under SCR 22.25, may file a motion with the supreme court requesting that the court order the respondent to show cause why his or her license to practice law should not he suspended for willful failure to respond or cooperate with the investigation. All papers, files, transcripts, communications, and proceedings on the motion shall be confidential and shall remain confidential until the supreme court has issued an order to show cause. The license of an attorney suspended for willful failure to respond or cooperate with an investigation may be reinstated by the supreme court upon a showing of cooperation with the investigation and compliance with the terms of suspension. The director or the special investigator shall file a response in support of or in opposition to the reinstatement within 20 days after the filing of an attorney's request for reinstatement. Upon a showing of good cause, the supreme court may extend the time for filing a response.
      (5) (a) Except as provided in sub (b), the director shall provide the grievant a copy of the respondent's response to the grievance and the opportunity to comment in writing on the respondent's response.
      (b) In limited circumstances when good cause is shown, the director may provide the grievant a summary of the respondent's response prepared by the investigator in place of a copy of the response.
      (6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance.
      (7) The duty of the respondent to cooperate with the investigation does not affect the respondent's privilege against self-incrimination, but the privilege may be asserted only in respect to matters that may subject the respondent to criminal liability.
      (8) The director, or a special investigator acting under SCR 22.25, may subpoena the respondent and others and compel any person to produce pertinent books, papers, and documents. The director, or a special investigator acting under SCR 22.25, may obtain expert assistance in the course of an investigation.

       SCR 22.28(3) provides: "(3) The license of an attorney that is revoked or suspended for misconduct for six months or more shall be reinstated pursuant to the procedure set forth in SCR 22.29 to 22.33 and only by order of the supreme court."

       SCR 22.29 provides: Petition for reinstatement.
      (1) A petition for reinstatement of a license suspended for a definite period may be filed at any time commencing three months prior to the expiration of the suspension period.
      (2) A petition for reinstatement of a license that is revoked may he filed at any time commencing five years after the effective date of revocation.
      (3) A petition for reinstatement shall be filed in the supreme court. A copy of the petition shall be served on the director and on the board of bar examiners.
      (3m) The petitioner shall file 9 copies of a petition for reinstatement.
      (4) The petition for reinstatement shall show all of the following:
      (a) The petitioner desires to have the petitioner's license reinstated.
      (b) The petitioner has not practiced law during the period of suspension or revocation.
      (c) The petitioner has complied fully with the terms of the order of suspension or revocation and will continue to comply with them until the petitioner's license is reinstated.

        (d) The petitioner has maintained competence and learning in the law by attendance at identified educational activities.
      (e) The petitioner's conduct since the suspension or revocation has been exemplary and above reproach.
      (f) The petitioner has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards.
      (g) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the courts.
      (h) The petitioner has fully complied with the requirements set forth in SCR 22.26.
      (j) The petitioner's proposed use of the license if reinstated.
      (k) A full description of all of the petitioner's business activities during the period of suspension or revocation.
      (m) The petitioner has made restitution to or settled all claims of persons injured or harmed by petitioner's misconduct or, if not, the petitioner's explanation of the failure or inability to do
      (5) A petition for reinstatement shall be accompanied by an advance deposit in an amount to he set by the supreme court for payment of all or a portion of the costs of the reinstatement proceeding. The supreme court may extend the time for payment or waive payment in any case in which to do otherwise would result in hardship or injustice.


author: NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Denis L.R., Defendant, Dawn R., Intervenor-Petitioner-Appellant.

    Court of Appeals

      No. 03-0384-CR.

      Submitted on briefs December 4, 2003.

      Decided February 4, 2004.

    2004 WI App 51
    (Also reported in 678 N.W.2d 326.)

      On behalf of the intervenor-petitioner-appellant, the cause was submitted on the briefs of Barbara J. Kirchner, of Kirchner & Buchko Law Office of She-boygan.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sandra L. Nowack, assistant attorney general.
    Before Anderson, EJ., Nettesheim and Snyder, JJ.

       Petition to review granted 6-8-04.

   NETTESHEIM, J.

¶ 1. Denis R. is charged with the sexual assault of his granddaughter, Kirstin. Kirstin's mother, Dawn R., disclosed certain information from Kirstin's counseling sessions to Dawn's grandmother. Dawn, as an intervening petitioner, appeals from the trial court ruling that she, as the privilege holder for her daughter, waived the privilege of confidentiality in Kirstin's counseling relationship by disclosing information to a third party. We uphold the trial court's ruling and affirm the order.

FACTS

¶ 2. On May 6, 2002, the State filed a complaint charging Denis with the repeated sexual assault of a child, his then three-year-old granddaughter Kirstin, contrary to Wis. Stat. § 948.025(1). Following a bin-dover at the preliminary hearing, the State filed an information alleging the same charges. Denis pled not guilty.

¶ 3. Denis then filed a motion asking the trial court to conduct an in camera inspection of Kirstin's counseling records. In his supporting offer of proof, Denis alleged that (1) Dawn reported that Kirstin has made untrue allegations against others in the past; (2) Kirstin makes up stories; (3) Kirstin was seeing a family counselor by the name of Judy Droppers at Choices Family Services; and (4) Kirstin had told Droppers that nothing happened with her grandfather and on other occasions indicated that something had happened only once during the charging period alleged in the criminal information.

¶ 4. In correspondence to the trial court, the State reported that it had begun the process of obtaining Kirstin's hospital and counseling records but that Dawn had revoked her consent for the disclosure of Kirstin's records and would not be providing the prosecution or the police department with any other information. The State also represented that Dawn had obtained a private attorney. The State informed the court that the information being sought by Denis likely contained both inculpatory and exculpatory information but that the information was also necessary for the State's prosecution. While the State believed it could obtain the records under Wis. Stat. § 146.82(2)(a)ll without Dawn's consent, it inquired whether it would need to share the information with Denis.

¶ 5. The State additionally noted that the information in Denis' offer of proof indicated that Dawn had already waived the privilege by voluntarily disclosing a significant part of the matter of communication. In a later affidavit filed on August 30, 2002, Helen R., Denis' mother, stated that Dawn had informed her that on one occasion Kirstin had informed Droppers that nothing happened between her and Denis and that Kirstin had fabricated stories in her sessions with Droppers.

¶ 6. On September 5, 2002, the trial court ordered the State, to the extent it was capable under Wis. Stat. § 146.82(2)(a)ll, to obtain from Choices Family Services all records relating to Kirstin. The court additionally ordered that it would then "make further orders regarding the requested in-camera interview with counselors from Choices Family Services, subject to a possible claim by the counselors of privilege on behalf of Kirstin ... or other persons who have standing" on her behalf.

¶ 7. On September 13, 2002, the State then presented the trial court with an affidavit in support of a request that the trial court issue a subpoena duces tecum for Kirstin's counseling records from Choices Family Counseling. The trial court issued the subpoena the same day.

¶ 8. On October 9, 2002, the trial court held a hearing on the issue of whether Dawn had waived her parental privilege on Kirstin's behalf by voluntarily disclosing to a third party a significant part of the communication. At this hearing, Dawn testified that she did not intend to waive any privilege but was simply discussing Kirstin's well being with a trusted family member, her grandmother Helen. At the conclusion of the hearing, the trial court took the matter under advisement.

¶ 9. On January 21, 2003, the court issued an oral decision, ruling that Dawn's disclosure to Helen constituted a waiver of Kirstin's privilege:

[D]id Dawn [R.] voluntarily disclose a significant part of the communication between her daughter Kirsten, and her daughter's counselor? The Court concludes that in view of the totality of the circumstances that she did. The Court notes that although the statements were relatively brief and did not comprehensively encompass the totality of the purpose or benefit of the counseling sessions, the statements were germane to a significant part of the matter being discussed at the time, that is an alleged sexual assault. The statements disclosed by Dawn [R.] were made to a third party albeit her grandmother. The statements materially related to the counseling sessions and such statements were of extreme significance.

The court then determined that the scope of the waiver would be "limited to only those statements, impressions, opinions, et cetera which are attendant to the issues of purported sexual assault." A written order reflecting the court's decision was entered on February 3, 2003.

¶ 10. Following the court's decision, Dawn moved to intervene in the criminal case to protect Kirstin's privilege. Dawn's motion was granted by the trial court on February 24, 2003. Dawn subsequently appealed the trial court's order.

DISCUSSION

¶ 11. Wisconsin Stat. § 905.04 governs professional counselor-patient privilege. It provides in relevant part:

(2) GeneRal Rule of PRIVILEGE. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, the patient's physician, the patient's registered nurse, the patient's chiropractor, the patient's psychologist, the patient's social worker, the patient's marriage and family therapist, the patient's professional counselor or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.

As with any privilege, the counselor-patient privilege may be waived by voluntary disclosure under Wis. Stat. § 905.11, which provides:

A person upon whom this chapter confers a privilege against disclosure of the confidential matter or communication waives the privilege if the person or his or her predecessor, while holder of the privilege, voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This section does not apply if the disclosure is itself a privileged communication.

Pursuant to § 905.04(3), a guardian may invoke the privilege on the patient's behalf.

¶ 12. The parties do not dispute that Dawn, as Kirstin's guardian, may invoke or waive the counselor-patient privilege on Kirstin's behalf. The question of whether Dawn waived the counselor-patient privilege under Wis. Stat. § 905.11 requires the application of a statute to undisputed facts that we review de novo. See Nelson v. McLaughlin, 211 Wis. 2d 487, 495, 565 N.W.2d 123 (1997). In doing so, we are to ascertain and give effect to the legislature's intent. Id. We are also mindful that statutory privileges interfere with the trial court's search for the truth and are to be construed strictly and narrowly. Franzen v. Children's Hosp., 169 Wis. 2d 366, 386, 485 N.W.2d 603 (Ct. App. 1992).

¶ 13. Dawn contends that she did not waive Kirstin's counselor-patient privilege when she disclosed to her grandmother statements made by Kirstin during a counseling session. Dawn argues that waiver did not occur because (1) she did not intend to waive Kirstin's privilege by confiding in a trusted family member and (2) the statements disclosed did not constitute a significant portion of the counseling session.

¶ 14. We turn first to Dawn's argument that the trial court erred in failing to consider her intentions in disclosing information to her grandmother. Dawn cites to Mansfield v. Smith, 88 Wis. 2d 575, 592, 277 N.W.2d 740 (1979), for the proposition that "[a] waiver is the intentional relinquishment of a known right." (Emphasis added.) However, Mansfield was addressing the waiver of a right to an election in a real estate agreement, not the evidentiary privileges set forth under Wis. Stat. § 905.04 or their waiver under Wis. Stat. § 905.11.

¶ 15. This court recently analyzed whether waiver must be intentional under Wis. Stat. § 905.11. Sampson Children's Trust v. Sampson 1979 Trust, 2003 WI App 141, 265 Wis. 2d 803, 667 N.W.2d 831, review granted, 2003 WI 140, 266 Wis. 2d 60, 671 N.W.2d 847 (Wis. Oct. 1, 2003) (No. 02-1515). There, the court held "as recognized by the Federal Advisory Committee note to proposed Fed. R. Evid. 511, which was adopted in Wisconsin as Wis. Stat. Rule 905.11, the formulation of waiver by Johnson v. Zerbst, 304 U.S. 458, 464 (1938), as the intentional relinquishment of a known right, does not apply to waiver of evidentiary privileges." Sampson, 265 Wis. 2d 803, ¶ 11. Thus, if the "holder of the privilege" "voluntarily discloses" a communication shielded by evidentiary privilege under Wis. Stat. § 905.04, that disclosure need only be volitional. Sampson, 265 Wis. 2d 803, ¶ 17. "[O]nce confidentiality is destroyed through voluntary disclosure, no . subsequent claim of privilege can restore it, and knowledge or lack of knowledge of the existence of the privilege appears to be irrelevant." Id., ¶ 11 (citation omitted).

¶ 16. Dawn contends that our holding in Sampson does not apply in this case because there we were discussing the attorney-client privilege. While we agree that there are nuances of Sampson that are inapposite to this case, our holding with respect to Wis. Stat. § 905.11 clearly applies to the counselor-patient privilege, the waiver of which is determined under that same statute. We therefore reject Dawn's contention that the trial court erred in failing to consider her lack of intention in waiving Kirstin's privilege by voluntary disclosure of confidential information to a third party.

¶ 17. We next address Dawn's contention that her disclosure of the two statements made by Kirstin — that nothing occurred between her and Denis and that something occurred but only one time — were not a "significant part of the matter or communication" between Kirstin and her counselor, Droppers. See Wis. Stat. § 905.11; State v. Solberg, 211 Wis. 2d 372, 383-84, 564 N.W.2d 775 (1997) ("A privilege holder waives the privilege if he or she voluntarily discloses or consents to disclosure of any significant part of the matter or communication.").

¶ 18. Dawn argues that Kirstin's statements were relatively insignificant in light of the entire counseling relationship between Kirstin and Droppers both in terms of the reasons that Dawn, Kirstin and Dawn's other daughter were in counseling and in terms of the amount of time it took Kirstin to make the statements. Dawn testified that she and her daughters went to Droppers in part due to the possible sexual assault but also just to "vent out other issues." Dawn also testified that each of Kirstin's statements were made in about a thirty-second time period during the course of two counseling sessions that each lasted over an hour.

¶ 19. We reject Dawn's contention that the significance of the statements are measured in light of the seconds they took to make or against the number of reasons for seeking counseling. Dawn testified that Denis' possible sexual assault of Kirstin was one reason for seeking counseling. In discussing this matter with Dropper, Kirstin made statements as to whether Denis did or did not sexually assault her. As to the issue of sexual assault, we conclude that these statements made by Kirstin and voluntarily disclosed by Dawn are undeniably "a significant part of the matter or communication." Wis. Stat. § 905.11.

¶ 20. Finally, we reject Dawn's suggestion that pursuant to Solberg the trial court should have obtained a written release from Dawn, as Kirstin's guardian, or a statement of voluntary waiver on the record. See Solberg, 211 Wis. 2d at 385, n.6. Unlike Dawn, the victim in Solberg had made no prior voluntary disclosures of confidential medical information. Rather, the issue in Solberg pertained to the victim's consent to the release of medical records to the trial court — not whether she had waived her privilege via an earlier and voluntary disclosure to a third party. See id. at 384-85.

CONCLUSION

¶ 21. We conclude that Dawn waived the right to assert the counselor-patient privilege on Kirstin's behalf when she disclosed a significant part of Kirstin's communications with her counselor to a third party. We therefore uphold the trial court's order and remand for further proceedings consistent with this opinion.

By the Court. — Order affirmed.

       We note that Dawn additionally contends that Kirstin's counselors have an independent right to claim a privilege for Kirstin under Wis. Stat. § 905.04(3) (2001-02). Dawn concedes on appeal that the trial court did not directly address this issue. We decline Dawn's invitation to address this issue prior to a trial court ruling on the matter. To do so would be to issue an advisory opinion. See Brown v. LaChance, 165 Wis. 2d 52, 58, 477 N.W.2d 296 (Ct. App. 1991).
      All references to the Wisconsin Statutes are to the 2001-02 version.

       Neither the record nor the briefs advise as to who filed this affidavit. It is not linked to any motion filed by any interested party.

       Dawn originally commenced this appeal by filing a petition for leave to appeal a nonfinal order. However, we determined that the order was final because it concluded a special proceeding with respect to the confidentiality privilege held by Dawn on behalf of Kirsten. Following our order, Dawn filed a notice of appeal.

       In her reply brief, Dawn argues that the trial court's ruling should be construed to limit the scope of the waiver to only the exact words disclosed by Dawn in her conversation with her grandmother. We decline to address this issue. Although the issue was raised before the trial court, the trial court did not answer the issue. Furthermore, Dawn did not raise the issue on appeal until her reply brief. Therefore, the State has not had the opportunity to respond. State v. Chu, 2002 WI App 98, ¶ 42 n.5, 253 Wis. 2d 666, 643 N.W.2d 878 (we do not address issues raised for the first time in the reply brief), review denied, 2002 WI 109, 254 Wis. 2d 263, 648 N.W.2d 478 (Wis. Jun. 11, 2002) (No. 01-1934-CR), cert. denied, Chu v. Wisconsin, 537 U.S. 975 (U.S. Wis. Oct. 21, 2002) (No. 02-0356). Dawn may renew this issue in the trial court.


author: ANDERSON, EJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Ibrahim Begicevic, Defendant-Appellant.
    Court of Appeals

      No. 03-1223-CR.

      Submitted on briefs September 23, 2003.

      Decided February 4, 2004.

    2004 WI App 57
    (Also reported in 678 N.W.2d 293.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Donna J. Kuchler of Kuchler Law Offices, Waukesha.
    On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Jennifer R. Dorow, assistant district attorney, Waukesha, James M. Freimuth, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Anderson, EJ., Brown and Snyder, JJ.
   ANDERSON, EJ.

¶ 1. Ibrahim Begicevic raises multiple challenges to his conviction for a second offense operating with a prohibited alcohol concentration (PAC). We agree with the trial court that the arresting officer had reasonable suspicion to conduct a traffic stop and probable cause to request Begicevic to submit to a preliminary breath test (PBT). However, we reverse and remand this case because the arresting officer failed to use reasonable means to convey the implied consent warnings to Begicevic. On remand, Begicevic can pursue an order stripping the breath test results of automatic admissibility because suppression of the test results is not available when an arresting officer fails to use reasonable methods to meet the terms of the implied consent law.

¶ 2 Following the filing of a criminal complaint charging Begicevic with operating while intoxicated (OWI), second offense, and PAC, second offense, he filed motions seeking to suppress all blood alcohol test results, all oral and written statements and all other evidence. In his motions, Begicevic asserted that the arresting officer lacked reasonable suspicion to conduct a traffic stop, lacked probable cause to ask him to submit to a PBT, and failed to reasonably inform him of the implied consent warnings. After an evidentiary hearing and the filing of written argument, the circuit court denied all of Begicevic's motions. He raises the same issues in this appeal from his conviction for PAC, second offense.

Traffic Stop

¶ 3. Begicevic contends that the arresting officer lacked reasonable suspicion to support an investigative stop and seeks suppression of all evidence. "When we review a motion to suppress evidence, we will uphold the circuit court's findings of fact unless they are clearly erroneous. However, the application of constitutional principles to the facts is a question of law we decide without deference to the circuit court's decision." State v. Fields, 2000 WI App 218, ¶ 9, 239 Wis. 2d 38, 619 N.W.2d 79 (citations omitted). A law enforcement officer may lawfully conduct an investigatory stop if, based upon the officer's experience, he or she reasonably suspects "that criminal activity may be afoot." State v. Williams, 2001 WI 21, ¶ 21, 241 Wis. 2d 631, 623 N.W.2d 106 (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Reasonable suspicion is dependent on whether the officer's suspicion was grounded in specific, articulable facts, and reasonable inferences from those facts, that an individual was committing a crime. State v. Waldner, 206 Wis. 2d 51, 55-56, 556 N.W.2d 681 (1996).

¶ 4. Officer Renee Kennedy of the City of Brook-field Police Department was assisting another officer during an early morning traffic stop when she saw a vehicle approximately four hundred feet south of her location. What attracted her attention to the vehicle was that it was stopped, on an angle, in the left-turn lane but in the middle of the intersection beyond the stop line painted on the roadway. Kennedy made the decision to investigate why the vehicle was in the middle of the intersection and drove past the scene, made a U-turn, activated her emergency lights and came up behind the vehicle. As she pulled up behind the vehicle, the green left-turn arrow was activated by her squad because the suspicious vehicle was too far ahead of the stop line to activate the turn signal. Begicevic, who was driving the vehicle, made a left turn as soon as the green left-turn signal was activated and stopped after the turn in response to the officer's emergency siren. Kennedy estimated that eight to ten minutes elapsed from the time that she first saw Begicevic stopped in the middle of the intersection to the time that she made contact with him.

¶ 5. Begicevic contends that from these facts there is no reasonable basis to believe that he had committed any traffic offense. A police officer can make an investigative traffic stop if he or she reasonably suspects that a person is violating or is about to violate the civil traffic regulations. State v. Colstad, 2003 WI App 25, ¶ 11, 260 Wis. 2d 406 659 N.W.2d 394, cert. denied, Colstad v. Wisconsin, 124 S. Ct. 281 (U.S. Wis. Oct. 6, 2003) (No. 03-110). "[W]hen a police officer observes lawful but suspicious conduct, if a reasonable inference of unlawful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could he drawn, police officers have the right to temporarily detain the individual for the purpose of inquiry." Waldner, 206 Wis. 2d at 60 (citations omitted).

¶ 6. Kennedy had reasonable suspicion to conduct an investigative stop. Viewed in isolation, some of what she observed was lawful behavior. It is lawful for a car to be on the roadway at 1:30 a.m. It is lawful for a car to be stopped at an angle within its lane of travel. On the other hand, it is unlawful for a car to stop beyond a clearly painted stop line.

¶ 7. Kennedy was entirely reasonable in briefly stopping Begicevic in order to preserve the status quo until she could get more information. See Waldner, 206 Wis. 2d at 61. It was proper for Kennedy to investigate to determine if she could confirm her observations, from four hundred feet away, that Begicevic stopped beyond the painted stop line. She was confronted with one set of inferences that there was a lawful explanation for Begicevic's driving and another set of inferences that his driving might also arise from unlawful behavior. It was the essence of good police work for her to freeze the situation until she could sort out the ambiguity. See id. We agree with the circuit court that there was reasonable suspicion to support Kennedy's traffic stop of Begicevic.

Preliminary Breath Test

¶ 8. Begicevic argues that Kennedy did not have probable cause to request that he submit to a PBT. Wisconsin Stat. § 343.303 provides:

If a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63(1) or (2m).. . the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test using a device approved by the department for this purpose. (Emphasis added.)

We review probable cause under a de novo standard of review. County of Jefferson v. Renz, 231 Wis. 2d 293, 316, 603 N.W.2d 541 (1999). The test of probable cause is greater than the reasonable suspicion necessary to justify an investigative stop but less than the level of proof required to establish probable cause for arrest. Id. at 314.

¶ 9. When Kennedy initially made contact with Begicevic, he appeared confused on how to get to Milwaukee. She immediately noticed a strong odor of intoxicants and that his eyes were bloodshot and glassy. She asked Begicevic to get out of his car so that she could administer several field sobriety tests. Although he had a heavy accent and asked her if she spoke German, she believed that she was able to communicate her requests to him in English and began to instruct him on the field sobriety tests she wanted to conduct. Kennedy explained and demonstrated the one-legged stand test but when Begicevic responded that he had a leg injury, she went on to the heel-to-toe test. As she started to explain and demonstrate the test, Begicevic began to perform the test; Kennedy told him to stop and as she started to explain the test again, he began to perform the test again. When Kennedy started the third explanation of the heel-to-toe test, Begicevic again began to perform the test and Kennedy decided to let him complete the test. Kennedy concluded that Be-gicevic failed to properly perform the heel-to-toe test. She was unable to perform the horizontal gaze nystag-mus test for the reasons that Begicevic either moved his head or kept his eyes straight ahead rather than follow the pen. Because Kennedy was giving Begicevic the benefit of the doubt, she had him perform a fourth field sobriety test, the finger-to-nose test. After she explained and demonstrated the test, Begicevic tried it unsuccessfully three times. Based upon all of her observations, Kennedy asked Begicevic to submit to a PBT.

¶ 10. This case presents the very kind of situation for which the PBT was intended because it aided Kennedy in determining whether probable cause to arrest existed. The PBT's place in the process of an OWI investigation was discussed by the supreme court in Renz, 231 Wis. 2d at 310-11. First, an officer may make an investigative stop pursuant to Wis. Stat. § 968.24 if the officer "reasonably suspects" that a person has committed or is about to commit a crime or reasonably suspects that a person is violating the civil traffic regulations. Renz, 231 Wis. 2d at 310. After stopping the vehicle and contacting the driver, the officer's observations may cause the officer to suspect the driver of operating the vehicle while intoxicated. Id. If the observations of the driver are not sufficient to establish probable cause for arrest for an OWI violation, the officer may request the driver to perform various field sobriety tests. Id. However, the driver's performance on these tests may not produce enough evidence to establish probable cause for arrest.

The legislature has authorized the use of the PBT to assist an officer in such circumstances .... For noncommercial drivers, the officer may request a PBT if there is "probable cause to believe" that the person has been violating the OWI laws. If the driver consents to the PBT, the result can assist the officer in determining whether there is probable cause for the arrest.

Id. at 310-11 (citations omitted). If, under the facts, there are reasonable grounds to believe that the person has violated the OWI laws, the officer may arrest the driver under Wis. Stat. §§ 345.22 or 968.07(l)(d). Renz, 231 Wis. 2d at 311. Kennedy's use of the PBT in this case is supported by probable cause and is consistent with its intended purposes.

Implied Consent Warnings

¶ 11. Begicevic is Bosnian. He has lived in Wisconsin for six to eight years, his primary language is Croatian, and he speaks some German and some English. Given these circumstances, he contends that Kennedy's reading in English the Informing the Accused form was unreasonable. Whether the officer used reasonable means to convey the necessary implied consent warnings, Wis. Stat. § 343.305(4), is a question of law that we review de novo. State v. Baratka, 2002 WI App 288, ¶ 7, 258 Wis. 2d 342, 654 N.W.2d 875, review denied,, 2003 WI 16, 259 Wis. 2d 104, 657 N.W.2d 708 (No. 02-0770) (application of the implied consent statute to an undisputed set of facts is a question of law that we review independently). "To the extent the circuit court's decision involves findings of evidentiary or historical facts, those findings will not be overturned unless they are clearly erroneous." Id.

¶ 12. In State v. Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d 528, the Wisconsin Supreme Court was confronted with the issue of how must an arresting officer convey the implied consent warnings to an apprehended individual for whom English is not his or her primary language. Id., ¶ 18. Piddington had been profoundly deaf since birth and contended that he "needed an American Sign Language interpreter to fully understand the field sobriety tests and the information that he was to be given pursuant to Wisconsin's implied consent law." Id., ¶ 1 (citation omitted).

¶ 13. Piddington was stopped by a Wisconsin State Patrol trooper on suspicion of drunk driving. Id., ¶ 2. Piddington and his passenger informed the trooper that Piddington was deaf. Piddington also asked for a sign language interpreter. Id., ¶¶ 2-3. While checking Piddington's driver's license, the trooper asked his dispatch to track down a law enforcement officer who knew sign language but was informed that none was available. Id., ¶ 3. Although the trooper was planning to use the passenger to communicate with Piddington, he found that he could communicate with Piddington through notes, gestures and some speaking because Piddington could speech-read. Id., ¶ 3 n.4. Ultimately, the trooper arrested Piddington on a charge of drunk driving. Before placing him in the squad car, the trooper handcuffed Piddington with his hands in front so he could communicate through notes. Id., ¶ 5.

¶ 14. On the way into Madison, Piddington wrote a note requesting a blood test and the officer drove to a hospital to accommodate this demand. Id. A city of Madison police officer who had some knowledge of sign language, but was not a certified ASL interpreter, had been located and met the trooper and Piddington at the hospital. Id., ¶¶ 5-6. At the hospital, the police officer and Piddington were able to communicate by sign and orally. Id., ¶ 6. Piddington was given the Informing the Accused form, told to read the form and to initial each paragraph if he understood it, which he did. Id. The trooper then attempted to read the form to Piddington, who had become uncooperative and indicated that he could not read the trooper's lips. Id., ¶ 6 n.6. As a result, the police officer read the form to Piddington without any objection. Id. At the request of the police officer, Piddington submitted to a blood test. Id. The trooper testified that although at times it was difficult to communicate with Piddington, he made sure that Piddington understood what the trooper was saying and did not proceed with any step in the process until Piddington indicated that he understood. Id., ¶ 9.

¶ 15. The supreme court stated that the question presented was "how to best ensure that law enforcement officers comply with the legislature's mandate requiring that apprehended drivers are informed about their rights and responsibilities under the implied consent law." Id., ¶ 18. The supreme court concluded:

[W]e conclude that whether law enforcement officers have complied with Wis. Stat. § 343.305(4) turns on whether they have used reasonable methods which would reasonably convey the warnings and rights in § 343.305(4).... [T]he State has the burden of proof of showing, by a preponderance of the evidence, that the methods used would reasonably convey the implied consent warnings. Also, in the implied consent setting . . . the onus is upon the law enforcement officer to reasonably convey the implied consent warnings.
Whether the implied consent warnings given sufficiently comply with Wis. Stat. § 343.305(4) depends upon the circumstances at the time of the arrest; correspondingly, whether the methods used were reasonable and would reasonably convey those warnings also depends upon the circumstances facing the arresting officer. The purpose of Wis. Stat. § 343.305(4) to inform an accused driver, is fulfilled, rather than undermined, if the law enforcement officer must use reasonable methods that reasonably convey the implied consent warnings, in consideration of circumstances facing him or her. This interpretation ensures that an accused driver is properly advised under the implied consent law, without raising the specter of subjective confusion. Accordingly, we find that the legislature intended that law enforcement officers inform accused drivers of the implied consent warnings, and that duty is met by using those methods which are reasonable and reasonably convey those warnings under the circumstances at the time of the arrest.

Piddington, 241 Wis. 2d 754, ¶ 22-23 (footnotes and citations omitted).

¶ 16. In reaching this conclusion, the supreme court emphasized that the answer to the question depends only upon the conduct of the officer. Pidding-ton, 241 Wis. 2d 754, ¶ 1.

Whether [the apprehended driver] subjectively understood the warnings is irrelevant. Rather, whether there was compliance with [Wis. Stat.] § 343.305 remains focused upon the objective conduct of the law enforcement officer or officers involved.

Piddington, 241 Wis. 2d 754, ¶ 32 n.19.

¶ 17. This case is easily distinguishable from Pid-dington. Kennedy immediately knew that English was not Begicevic's primary language — not only did he have a heavy accent, but he asked Kennedy if she spoke German. She testified that:

I noticed that he had a strong accent right away, and he did ask me if I spoke German; however, in communication, I believed I was able to get my point across either right away or speaking to him several times in explaining what I meant. He was able to communicate with me.

¶ 18. Facing this communication difficulty, Kennedy did not make any effort to request her dispatcher to find an interpreter who spoke German; in fact, she was not aware if her department had arrangements with any interpreter services. When Kennedy brought Begicevic to the police department, she was met by Elm Grove Police Officer Brian E. Gasse who had monitored Kennedy's calls to her dispatch and volunteered to help because he had five years of schooling in German. Gasse testified that Begicevic spoke broken German and in communicating back and forth, "hand motions were used too. [Begicevic] insinuated the type of words, and mostly it was his native tongue. [Bosnian]" At the station Kennedy did not make any effort to locate a fluent German interpreter to replace Gasse or a Bosnian interpreter.

¶ 19. While Kennedy was completing her paperwork, Gasse explained, as best he could, why the citation was issued and the amount of the forfeiture. Begicevic replied, in English, that the citation for the improper stop was not fair. Kennedy then read the Informing the Accused form to Begicevic, but Gasse did not provide a verbatim translation nor did he explain the rights on the form in German to Begicevic. However, when Kennedy asked Begicevic to provide a sample of his breath for testing, Gasse was able to ask Begicevic, in German, if he would submit to the test. "After I worded the question one or two ways and in English and made hand motions, he eventually stepped up to the intoxometer and complied."

¶ 20. Whether Begicevic understood Kennedy sufficiently to complete several field sobriety tests or understood Kennedy and Gasse sufficiently to submit to a test of his breath is not relevant. The lesson of Piddington is that we are not to apply a subjective test or assess the driver's perception of the information delivered. Id., ¶ 21. The question is whether, under the circumstances confronting Kennedy, she used reasonable methods to reasonably convey the implied consent warnings to Begicevic. And we have to answer no.

¶ 21. Kennedy did not attempt to obtain an interpreter. When Kennedy read the Informing the Accused in English, Gasse did not translate the form verbatim nor did he make an effort to explain the rights in the form in German to Begicevic. In Piddington, the trooper used speech-read, gestures and notes to communicate with Piddington. Additionally, he was assisted by a police officer who knew ASL and Piddington was given the opportunity to read the implied consent warnings and initial that he understood each paragraph. Kennedy's attempts to reasonably communicate with Begicevic fall woefully short of the standard set by the trooper in Piddington.

¶ 22. While conceding that "officers probably must make some reasonable effort to accommodate" a driver who does not understand English, the State contends that Kennedy "reasonably conveyed the implied consent warnings to Begicevic with due regard for [his] apparent limitations in understanding English." The State points out (1) by the time she read the implied consent warnings, Kennedy had reason to believe that Begicevic had an understanding of English; (2) Gasse was able to converse with Begicevic in German; (3) Begicevic had been previously arrested for OWI; (4) Begicevic understood Gasse's request for him to take a breath test; and (5) Begicevic had lived in the area, had a job and possessed a Wisconsin operator's license. The State argues that this information, pitted against the exigency of blood-alcohol dissipation, supports the conclusion that the officer reasonably conveyed the implied consent warnings to Begicevic and reasonably did not try to locate an interpreter.

¶ 23. We will address the State's arguments in reverse order. We are not persuaded that the exigency of blood alcohol dissipation excuses the officer's failure to attempt to locate an interpreter. The breath test was administered within one hour of Begicevic's arrest; the officer still had two hours in which an effort could have been made to locate an interpreter. See State v. Bohling, 173 Wis. 2d 529, 533, 494 N.W.2d 399 (1993); see also Wis. Stat. § 885.235(lg) (blood test result is automatically admissible if blood is taken within three hours of the stop). Under the circumstances, there was not an immediate concern that the evidentiary value of a breath test would be compromised by waiting up to two hours while an effort was made to contact an interpreter.

¶ 24. The bulk of the State's argument addresses whether Kennedy could reasonably believe that Be-gicevic had a sufficient understanding of English to comprehend the implied consent warnings. The argument ignores Piddington's admonition, "[wjhether [the apprehended driver] understood the warnings is irrelevant." Piddington, 241 Wis. 2d 754, ¶ 32 n.19.

¶ 25. Justice Sykes writes in a concurring opinion in Piddington that it would be unreasonable for an officer to merely read the implied consent warnings in English to a suspect who speaks a foreign language. Id., ¶ 64. "The notion that the statute requires only an oral English language reading of the implied consent warnings to a . . . non-English speaking suspect is manifestly unreasonable." Id., ¶ 65. We conclude that Kennedy's attempt to inform Begicevic of the implied consent warnings was manifestly unreasonable.

¶ 26. Begicevic seeks suppression of the breath alcohol test results as a result of the officer's failure to reasonably convey the implied consent warnings to him. "Suppression of evidence is 'only required when evidence has been obtained in violation of a defendant's constitutional rights, or if a statute specifically provides for the suppression remedy.'" State v. Keith, 2003 WI App 47, ¶ 8, 260 Wis. 2d 592, 659 N.W.2d 403, review denied, 2003 WI 32, 260 Wis. 2d 753, 661 N.W.2d 101 (No. 02-0583-CR) (citation omitted). Piddington clarifies that Begicevic is not entitled to the remedy he seeks. Piddington, 241 Wis. 2d 754, ¶ 34.

¶ 27. Neither alternative mentioned in Keith, 260 Wis. 2d 592, ¶ 8, is available to Begicevic. First:

The breath test evidence was legally obtained incident to [Begicevic's] arrest because the arresting officer had two independent bases for obtaining the breath sample: (1) probable cause to believe the OWI statute had been violated and exigent circumstances (blood rapidly metabolizes alcohol, leading to the eventual disappearance of the evidence of intoxication), and (2). .. [Begicevic's] actual consent to the testing.

County of Eau Claire v. Resler, 151 Wis. 2d 645, 653, 446 N.W.2d 72 (Ct. App. 1989). Second, the implied consent statute conspicuously lacks any legislative direction that test results must be suppressed when there is a failure to reasonably convey the implied consent warnings to an apprehended driver. State v. Zielke, 137 Wis. 2d 39, 51, 403 N.W.2d 427 (1987).

¶ 28. Under the circumstances of this case, apart from suppression, on remand Begicevic can pursue "an order prohibiting the automatic admissibility of the blood test result pursuant to [Wis. Stat.] § 885.235. Instead of relying upon the automatic admissibility of the blood test, the State would have to establish the admissibility of the blood test, including establishing a foundation." Piddington, 241 Wis. 2d 754, ¶ 34.

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

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. Although this case was originally a one-judge appeal, we ordered that this case be made a three-judge appeal pursuant to Wis. Stat. Rule 809.41(3). The attorney general elected to participate and filed a supplemental brief.

       When reviewing a suppression ruling, we are not limited to the record before the circuit court at the time of the suppression ruling. Other information produced before or after the suppression hearing may be used to support the circuit court's decision. State v. Gaines, 197 Wis. 2d 102, 106-07 n.1, 539 N.W.2d 723 (Ct. App. 1995). In this case, we have the benefit of the complete transcripts of the motion hearing and the jury trial and we develop the relevant facts from both the motion hearing and the trial.

       Wisconsin Stat. § 346.37(l)(c)l provides:
      Vehicular traffic facing a red signal shall stop before entering the crosswalk on the near side of an intersection, or if none, then before entering the intersection or at such other point as may be indicated by a clearly visible sign or marking and shall remain standing until green or other signal permitting movement is shown.

       We are mindful that the State only has a small window of opportunity in which to collect a valid breath-alcohol sample, see State v. Bohling, 173 Wis. 2d 529, 533, 494 N.W.2d 399 (1993); see also Wis. Stat. § 885.235(lg) (blood test result is automatically admissible if blood is taken within three hours of the stop); nevertheless, that does not excuse the failure to make an effort to use reasonable methods to convey the implied consent warnings to Begicevic. There is nothing in the record to support a conclusion that it would have taken extraordinary or impractical measures to reasonably convey the implied consent warnings to Begicevic. The traffic stop occurred at 1:20 a.m. Kennedy transported Begicevic to the police station, began to process the necessary paperwork, read him the Informing the Accused form and, at 2:08 a.m., requested that he submit to a chemical test. Begicevic's first breath sample was recorded at 2:20 a.m. and the second sample at 2:26 a.m. Within the three hour window of opportunity, § 885.235, there was a cushion of almost two hours in which a reasonable effort could have been made to find an interpreter.

       It is unreasonable to assume that a driver possessing an operator's license understands the English language. The rules for knowledge tests of applicants for an operator's license includes a note providing, "Persons who do not speak English are encouraged to advise the Department of the languages they can read and speak when scheduling their examinations. The Department will attempt to accommodate special language needs of applicants." Wis. Admin. Code § Trans 104.03.


author: SNYDER, J.

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

    Court of Appeals

      No. 03-1269-CR.

      Submitted on briefs November 6, 2003.

      Decided February 4, 2004.

    2004 WI App 59
    (Also reported in 677 N.W.2d 644.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Len Kachinsky of Sisson & Kachinsky of Appleton.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Lara M. Herman, assistant attorney general.
    Before Anderson, PJ., Nettesheim and Snyder, JJ.

       Petition to review denied 4-20-04.

   SNYDER, J.

¶ 1. David A. Lehman appeals a judgment of conviction for three counts of party to the crime of armed robbery and an order denying his postconviction motion. Lehman contends that the trial court exceeded its statutory sentencing authority when it established a four-year waiting period before Lehman would be eligible for the Challenge Incarceration Program (CIR also called "boot camp"). We disagree and affirm the judgment and order of the trial court.

FACTS

¶ 2. On June 3, 2003, the State filed a criminal complaint against Lehman charging him with four counts of party to the crime of armed robbery, contrary to Wis. Stat. §§ 941.32(l)(b), (2) and 939.05(1). The parties entered into an agreement under which Lehman pled no contest to three of the four charges. The fourth was dismissed, but read in at sentencing.

¶ 3. At the sentencing hearing, the court made specific findings as to the character of the defendant, the nature and gravity of the offenses, and the need to protect the public. With respect to Lehman's character, the court noted that Lehman used drugs and associated with other drug users. The court described the offenses as "very serious" and having a lasting effect on the victims. The judge also stated that the community deserved protection from the fear caused by Lehman's repeated criminal activity. The judge considered Lehman's remorse and his potential for rehabilitation, but stated that the sentence must not "unduly depreciate the serious nature of [Lehman's] conduct."

¶ 4. The trial court imposed a bifurcated sentence on the first count of armed robbery, with eight years of incarceration followed by ten years of extended supervision. The court, as required under Wis. Stat. § 973.01(3m), also found that Lehman was eligible for the CIE but imposed a four-year waiting period on Lehman's eligibility. The court withheld sentence on the second and third counts, placing Lehman on probation for eighteen years.

¶ 5. Lehman filed a postconviction motion to set aside the waiting period for his eligibility for the CIE In his motion, he argued that Wis. Stat. § 973.01(3m) authorizes a trial court to determine if a defendant is eligible, but that the court "lacked authority to set a waiting period for the defendant's eligibility for the CIE" The trial court disagreed and denied Lehman's motion.

¶ 6. Lehman appeals, arguing that the statute gives the trial court the authority to determine whether a defendant is eligible for the CIE but that the determination of when the defendant is eligible is delegated to the Department of Corrections (DOC). We disagree.

DISCUSSION

¶ 7. Review of a trial court's interpretation of a statute is a question of law that this court reviews de novo. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997). Our goal is to give effect to the intent of the legislature. State v. Corey J.G., 215 Wis. 2d 395, 411, 572 N.W.2d 845 (1998). We first look to the plain language of the statute. Id. at 411-12. If the language of a statute is clear on its face, we need not look any further than the statutory text to determine the statute’s meaning. State v. Peters, 2003 WI 88, 14, 263 Wis. 2d 475, 665 N.W.2d 171. However, if a statute is ambiguous, we consult the scope, history, context, subject matter and object of the statute in order to ascertain legislative intent. Village of Lannon v. WoodLand Contractors, Inc., 2003 WI 150, 72, 267 Wis. 2d 158, 672 N.W.2d 275. A statute is ambiguous if it is susceptible to two or more reasonable interpretations. Id.

¶ 8. Our first task is to look at the plain language of the statute. Wisconsin Stat. § 973.01(3m) reads:

Challenge INCARCERATION Program Eligibility. When imposing a bifurcated sentence under this section on a person convicted of a crime ... the court shall, as part of the exercise of its sentencing discretion, decide whether the person being sentenced is eligible or ineligible for the challenge incarceration program under s. 302.045 during the term of confinement in prison portion of the bifurcated sentence.

¶ 9. Lehman contends that the plain language of the statute gives the trial court the authority to determine whether, but not when, the offender is eligible. He specifically points to the language that requires the court to "decide whether the person being sentenced is eligible or ineligible for the challenge incarceration program under s. 302.045 during the term of confinement in prison portion of the bifurcated sentence." See Wis. Stat. § 973.01(3m) (emphasis added). We agree that Lehman's interpretation of § 973.01(3m) is a reasonable one.

¶ 10. The State contends that nothing in the statute prevents a court from determining when an offender is eligible for the CIE The State argues that the statutory language requiring that the court, "as part of the exercise of its sentencing discretion, decide whether the person being sentenced is eligible or ineligible for the challenge incarceration program under s. 302.045 during the term of confinement in prison portion of the bifurcated sentence," Wis. Stat. § 973.01(3m) (emphasis added), allows a court to determine when, in the course of imprisonment, the offender will be eligible. We are persuaded that this is also a reasonable interpretation of § 973.01(3m).

¶ 11. We conclude that because there are two incompatible, yet reasonable, interpretations of Wis. Stat. § 973.01(3m), the statute is ambiguous. See Village of Lannon, 267 Wis. 2d 158, ¶ 72. We therefore turn to the history, objectives, and scope of the statute to discern the legislative intent. See Stockbridge School Dist. v. DPI, 202 Wis. 2d 214, 220, 550 N.W.2d 96 (1996).

¶ 12. Lehman posits that the legislative intent behind Wis. Stat. § 973.01(3m) can be discerned by looking at two related statutes. First, he directs us to the provision creating and describing the CIP program. Arguing that the legislature delegated the authority to determine when an inmate is eligible for the CIP program to the DOC rather than the court, Lehman cites Wis. Stat. § 302.045(2), which reads:

PROGRAM eligibility. Except as provided in sub. (4), the department may place any inmate in the challenge incarceration program if the inmate meets all of the following criteria:
(a) The inmate volunteers to participate in the program.
(b) The inmate has not attained the age of 30, as of the date the inmate will begin participating in the program.
(c) The inmate is incarcerated regarding a violation other than a crime specified in ch. 940 or s. 948.02, 948.025, 948.03, 948.05, 948.055, 948.06, 948.07, 948.075, 948.08, or 948.095.
(cm) If the inmate is serving a bifurcated sentence imposed under s. 973.01, the sentencing court decided under s. 973.01(3m) that the inmate is eligible for the challenge incarceration program.
(d) The department determines, during assessment and evaluation, that the inmate has a substance abuse problem.
(e) The department determines that the inmate has no psychological, physical or medical limitations that would preclude participation in the program.

Lehman argues that § 302.045(2) gives the DOC discretion to determine the timing of an inmate's eligibility and that § 973.01(3m) "does not give the trial court authority to limit the [DOC's] discretion as to when during a determinate sentence an offender may be offered the opportunity to participate in the CIE"

¶ 13. Lehman also compares the language in Wis. Stat. § 973.01(3m) with that of Wis. Stat. § 973.014(1), which addresses a court's responsibility to make a parole eligibility determination when imposing a life sentence. In relevant part, this statute states that a court making a parole eligibility determination shall elect one of three options: (1) that the person is eligible for parole, (2) that the person is eligible for parole on a date set by the court, or (3) that the person is not eligible for parole. Sec. 973.014(l)(a)-(c). Lehman asserts that, had the legislature intended to give sentencing courts the authority to determine when an offender can participate in the CII^ it would have written § 973.01(3m) to incorporate three similar choices.

¶ 14. In contrast, the State turns to legislative history to ascertain the meaning of the statute. We agree that this is the proper course in discerning the legislative intent behind Wis. Stat. § 973.01(3m).

¶ 15. The legislature enacted 1997 Wis. Act 283 as its original Truth-in-Sentencing law on June 15, 1998. This Act created a Criminal Penalties Study Committee to conduct a study and make recommendations for implementation of Truth-in-Sentencing. 1997 Wis. Act 283, § 454(l)(b). The committee's final report, released August 31, 1999, provides background on Wis. Stat. ch. 973, the Truth-in-Sentencing law in Wisconsin. The report explains that the new sentencing policy arose out of concern over parole and early release creating "a 'revolving door' criminal justice system" and leading to the early release of many offenders. State of Wisconsin Criminal Penalties Study Committee, Final Report, i, (Aug. 31, 1999). The committee report states that there is a "shift of more complete — and informationally accurate — sentencing decisionmaking to the judiciary." Id. The statutory scheme places the responsibility on judges "to more carefully fashion a sentence based upon the severity of the crime, the character of the offender, the interests of the community, and the need to protect the public." Id.

¶ 16. The legislature's intent to give more discretion to judges is apparent in the CIP statute. The court is to make its eligibility determination "as part of the exercise of its sentencing discretion." Wis. Stat. § 973.01(3m). This is emphasized by the fact that a judge may deny eligibility to a defendant even if the defendant meets all of the other eligibility criteria set forth in Wis. Stat. § 302.045(2)(cm). Clearly, the legislature intended to provide greater judicial discretion for judges imposing bifurcated sentences and considering CIP eligibility.

¶ 17. The intent of the legislature is therefore advanced by an interpretation of Wis. Stat. § 973.01(3m) that allows a sentencing court to determine not only whether a defendant is eligible for the CII5 but also to set a date of eligibility within the term of confinement in prison. We agree with the State that "[allowing a sentencing court to use its discretion in determining when the defendant would be eligible for the CIP comports with the intent of the legislature."

¶ 18. With this interpretation in mind, we determine that the sentencing court exercised its discretion in accordance with the authority granted to it by Wis. Stat. § 973.01(3m) when it imposed a four-year waiting period on Lehman's CIP eligibility. The court considered the severity of the crimes, the character of the offender, the interests of the community, and the need to protect the public when crafting Lehman's sentence. This is precisely the sort of judicial discretion contemplated in the creation of sentencing policy in Wisconsin.

CONCLUSION

¶ 19. We conclude that the language of Wis. Stat. § 973.01(3m) is subject to more than one reasonable interpretation and is therefore ambiguous. Lehman's preferred interpretation, which limits judicial discretion at sentencing, fails in light of the legislature's intent to shift more complete, and informationally correct, decision-making authority to the courts. We hold that § 973.01(3m) authorizes the sentencing court, in the exercise of its discretion, to determine both if and when a defendant is eligible for the CIP program.

By the Court. — Judgment and order affirmed.

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

       This report is available through the Wisconsin Department of Administration web site at http://www.doa.state.wi.us /docs_view2.asp?docid=42.