author: ANDERSON, EJ.

text:
    Jane Nielsen, Jonathan Lopez, a minor by Jeffrey A. Pitman, his Guardian, and Gerardo Lopez, Plaintiffs-Appellants, Great Northern Corporation, Involuntary-Plaintiff, v. Terese A. Spencer, Franklin Spencer, and State Farm Fire & Casualty Company, Defendants-Respondents.
    Court of Appeals

      No. 2004AP3032.

      Submitted on briefs June 22, 2005.

      Decided August 10, 2005.

    2005 WI App 207
    (Also reported in 704 N.W.2d 390.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the brief of Jonathan P. Groth of Pitman, Kyle & Sicula, S.C., Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Robert Bull and Matthew T Fricker of Crivello, Carlson & Mentkowski, S.C., Milwaukee.
    Before Anderson, PJ., Brown and Snyder, JJ.

       Petition to review withdrawn 9-28-05.

   ANDERSON, EJ.

¶ 1. Terese A. Spencer's son, Franklin Spencer, allegedly hit Jonathan Lopez over the head with a weapon causing him to sustain serious head injuries. Jane Nielsen, Lopez's mother, and Lopez, by his father and a guardian ad litem, filed a claim against Terese for negligent failure to control a child pursuant to Restatement (Second) of Torts § 316 (1965). Lopez argues that the circuit court erred by granting partial summary judgment in favor of Terese because genuine issues of material fact exist regarding whether Terese knew, or should have known, of the necessity and opportunity for controlling Franklin. We conclude that the record does not contain any evidence suggesting Terese knew, or should have known, of specific instances of prior conduct sufficient to put her on notice that the act complained of was likely to occur, and of the opportunity to exercise her ability to control Franklin. We affirm.

Facts

¶ 2. On February 5, 2002, Franklin, who was sixteen years old, and a few of his friends encountered Lopez and a group of his friends at the Regency Mall in Racine. Lopez and Franklin had never spoken to one another, but were acquainted through mutual friends. The two first engaged in small talk without incident; however, they later exchanged words and the parties stepped outside the mall. Once outside the mall, the parties confronted each other and Franklin allegedly hit Lopez in the head with a blackjack. Lopez allegedly suffered a serious head injury as a result.

¶ 3. In June 2003, Nielsen and Lopez, by his father and a guardian ad litem, filed suit against Terese, alleging, in pertinent part: (1) negligent failure to control her son Franklin and (2) negligent failure to warn Franklin of the hazards of using a weapon to strike a blow. As to the first cause of action, Lopez maintained that Terese was negligent "by allowing FRANKLIN, access, possession of and use of a weapon, and/or, in the alternative by failing to deter, supervise, prevent, discover and remove any weapons from FRANKLIN." As to the second cause of action, Lopez argued that Terese was negligent for failing "to properly warn and instruct FRANKLIN of the dangers involved in using a weapon [and] in allowing a weapon into her home."

¶ 4. In April 2004, Terese moved for partial summary judgment as to the claims against her. First, as to the negligent failure to control claim, Terese argued that she did not know and should not have known of the necessity and opportunity for exercising control over Franklin on the date of the incident. Second, as to the negligent failure to warn claim, Terese contended that there is no authority in Wisconsin recognizing a parental duty to warn or instruct minors of the dangers involved in using a weapon to strike a blow. Terese relied on the statements she made in her deposition to support her arguments.

¶ 5. Terese testified that she and Franklin's father home schooled Franklin from the fourth grade until he finished high-school-level material. She and his father taught him for three hours per day, seven days per week in order to meet the state's hour requirements. She remarked that she had reduced her work hours so that she could be home at 3:00 p.m. every day. She stated that she was not aware of Franklin's involvement in any criminal activities prior to February 5, 2002, she did not consider Franklin to be a violent person, she had never known Franklin to use an instrument or any kind of object to injure another person, and prior to February 5, she was not aware of Franklin owning a blackjack. She averred that she did not know Lopez before February 5. She also said that she was not aware of Franklin's involvement in any kind of theft of property prior to February 5, but that she did recall having to pay for damages resulting from a window he had broken at some point.

¶ 6. In his motion opposing partial summary judgment, Lopez argued that there were genuine issues of material fact regarding Terese's awareness of Franklin's prior criminal activity and her acts and omissions in controlling, educating and parenting Franklin. Lopez observed that he had not received an answer to his request for confidential police records concerning Franklin's criminal history and, as a result, the court did not know whether Franklin had committed or was charged with any crimes prior to February 5. Lopez further pointed out that in her deposition Terese testified that she did not know or could not recall whether Franklin had ever been disciplined at work, what he did with his money, whether his friends drove him around town, whether he had a girlfriend, who his friends were, whether he had any friends she did not approve of and whether they came over to her house, and whether she had ever spoken with any of his friends' parents.

¶ 7. The circuit court held a hearing on the partial summary judgment motion on July 8, 2004. The court opened the hearing with a discussion of its in camera review of confidential police department reports involving the department's contacts with Franklin. According to the court, Franklin had a number of contacts with the police prior to February 5, "but the majority of his contact had to do with criminal damage to property." The court noted that the police reports listed Franklin as a victim of two assaults and referenced one 1999 situation where "there may have been a physical altercation with another individual." According to the court, one of the police reports indicated that Terese "expressed frustration at her ability to control her son." The court also explained that while Franklin was a suspect a number of times, he was not convicted. In light of this evidence, the court concluded that "nothing I find that until the incidents that gave rise to this lawsuit that [Franklin's] behavior was so outrageous [Terese] would have had a notion of his problems leading to delinquency." The court subsequently issued an order granting Terese's motion for partial summary judgment and dismissing her from the action. Lopez now appeals.

Standard of Review

¶ 8. Procedurally, this case turns on whether the circuit court properly granted summary judgment in favor of Terese. Wisconsin Stat. § 802.08 (2003-04) sets forth when a circuit court may appropriately grant summary judgment. According to § 802.08(2), summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

¶ 9. Although we review a grant of summary judgment independently, we use the same methodology as the circuit court. Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶ 30, 236 Wis. 2d 435, 613 N.W.2d 142. Thus, we apply the criteria set forth in Wis. Stat. § 802.08(2). Our first step is to determine if the pleadings set forth a claim for relief. Trinity Evangelical Lutheran Church and School-Freistadt v. Tower Ins. Co., 2003 WI 46, ¶ 32, 261 Wis. 2d 333, 661 N.W.2d 789. If such claim is set forth, and the moving party has established a prima facie case for summary judgment, we examine the record to determine whether there exist disputed material facts, or undisputed material facts, from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial. Id.

¶ 10. The burden is on the moving party to prove that there are no genuine issues of material fact. Strasser, 236 Wis. 2d 435, ¶ 31. An issue of fact is genuine if a reasonable jury could find for the nonmov-ing party. Id., ¶ 32. A material fact is such fact that would influence the outcome of the controversy. Id.

Discussion

¶ 11. The sole issue we visit on appeal is whether there exist genuine issues of material fact regarding Lopez1 claim of negligent failure to control the conduct of a child. Lopez appears to argue that the police department records indicate that Franklin had "violent and delinquent tendencies" and therefore raise a jury question as to whether Terese knew, or should have known, of the necessity and opportunity for controlling Franklin.

¶ 12. Our supreme court has adopted Restatement (Second) of Torts § 316 (1965), Duty of Parent to Control Conduct of Child, as an applicable standard of conduct in negligence actions. Gritzner v. Michael R., 2000 WI 68, ¶ 49, 235 Wis. 2d 781, 611 N.W.2d 906. That section provides:

A parent is under a duty to exercise reasonable care so to control his [or her] minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he [or she] has the ability to control his [or her] child, and
(b) knows or should know of the necessity and opportunity for exercising such control.

Restatement (Second) of Torts § 316 (1965). Wisconsin's civil jury instructions restate this standard of conduct as follows:

A parent must use ordinary care to control (his) (her) minor child so as to prevent the child from intentionally harming others or from conducting (himself) (herself) so as to create an unreasonable risk [of] bodily harm to others, if the parent knows or should know:
(1) that (he) (she) has the ability to control the child;
(2) that there is a necessity for exercising such control; and
(3) that there is an opportunity to do it.

Wis JI — Civil 1013.

¶ 13. With this standard in mind, we have carefully reviewed the police department records and the deposition testimony Lopez relies upon to support his contention. Even when viewed most favorably to Lopez, this evidence does not establish that Terese knew, or should have known, at the time of the February 5 incident of the opportunity and necessity for controlling Franklin.

¶ 14. The Restatement's parental duty to control has been interpreted narrowly, both in Wisconsin and elsewhere. See Jeffrey L. Skaare, Note, The Development and Current Status of Parental Liability for the Torts of Minors, 76 N.D. L. Rev. 89, 97 (2000) (noting that the Restatement's necessity element has been interpreted narrowly); Gritzner, 235 Wis. 2d 781, ¶ 58 (noting that the legal theory of parental duty to control the conduct of a child provides narrow, well-defined guidelines for evaluating liability). Mere knowledge by the parent of a child's mischievous and reckless, heedless or vicious disposition is not of itself sufficient to impose liability with respect to torts of a child. See Bieker v. Owens, 350 S.W.2d 522, 525 (Ark. 1961); Dinsmore-Poff v. Alvord, 972 P.2d 978, 981, 986 (Alaska 1999). Specifically, the parent must know, or should have known, that the child had a habit of engaging in the particular act or course of conduct which led to the plaintiffs injury. See Dinsmore-Poff, 972 P.2d at 986; Barth v. Massa, 558 N.E.2d 528, 534 (Ill. App. Ct. 1990); Skaare, supra, at 95, 97. Simply put, no parental liability exists without notice of a specific type of harmful conduct and an opportunity to interfere with it. Barth, 558 N.E.2d at 535.

¶ 15. The record in this case contains no evidence from which it could be reasonably inferred that Terese knew, or should have known, of specific acts of prior conduct sufficient to put her on notice that the act Lopez complains of was likely to occur. Terese averred that she did not know Lopez, she did not consider Franklin to be a violent person, she had never known Franklin to use an instrument or any kind of object to injure another person, and she was not aware of Franklin owning a blackjack prior to February 5. The evidence simply does not suggest that she knew, or should have known, otherwise in February 2002.

¶ 16. The police department records do indicate that Franklin had several contacts with the police prior to February 5. However, the majority of these contacts involved nonviolent delinquent behavior, not of the type alleged in the Lopez incident. For example, Franklin had been named as a suspect for bicycle thefts, knocking over of construction barricades and a possible attempted burglary. Terese had reported Franklin as a runaway. He also was arrested for criminal damage to property for breaking a window, but was not convicted prior to the February 5 incident.

¶ 17. There is only one reference in the police reports and testimony to a possible physical altercation in which Franklin was an aggressor and not a victim. It is this incident that Lopez focuses on. In 1999, Franklin allegedly broke another teenager's skateboard and then punched the teenager in the chest and head. Even if we assume that Terese was fully aware of the nature of Franklin's conduct, the incident occurred nearly three years before Franklin's run-in with Lopez and the other teenager involved in the incident did not report any visible or otherwise detectable injury as a result of the punches. We conclude that there are no facts that Terese should have or could have known about showing that Franklin had a habit of engaging in violent, aggravated batteries on other children by the use of dangerous instrumentalities. Terese seems to suggest that Franklin may not have used a blackjack or other weapon when he beat Lopez. Even if Franklin's use of a blackjack or other weapon is in dispute, it is not an issue of "material fact." Regardless of the nature of Franklin's weapon, whether it be a blackjack or his fists, there are no facts that Terese should have or could have known about showing that Franklin had a habit of engaging in violent, aggravated batteries on other children. See Barth, 558 N.E.2d at 534 (holding that a parent must know or should have known that the child had a habit of engaging in the particular act or course of conduct which led to the plaintiffs injury).

¶ 18. Furthermore, there is no evidence in the record of the opportunity to prevent the conduct alleged in this case. "The duty of a parent is only to exercise such ability to control his [or her] child as he [or she] in fact has at the time when he [or she] has the opportunity to exercise it and knows the necessity of so doing." Restatement (Second) of Torts § 316 cmt. b (1965) (emphasis added). In Seibert v. Morris, 252 Wis. 460, 462, 32 N.W.2d 239 (1948), the injury occurred when a child obtained possession of his father's bow and arrow and was shooting in the air in the presence of other children. Our supreme court refused to hold the child's father liable, explaining, in part, that the father "was out of town at the time and had no immediate control of the situation." Id. at 463. Similarly, in this case it is undisputed that Franklin's altercation with Lopez did not occur in the vicinity of or in close proximity to Terese. In addition, there is nothing to suggest that Terese knew, or should have known, that when Franklin left the house prior to the February 5, 2002 incident, he had in his possession, or would obtain, an instrument to use as a weapon or that he would otherwise get into a physical altercation.

¶ 19. Absent some evidence, viewed most favorably to Lopez, that Terese knew, or should have known, of the necessity and opportunity for controlling Franklin's conduct on February 5, there can be no liability. We hold, therefore, that the circuit court properly granted Terese's partial motion for summary judgment.

¶ 20. Other jurisdictions have applied the standard set forth in § 316 of the Restatement under similar circumstances and have reached similar conclusions. For example, in Barth, a fifteen-year-old boy's parents knew that he had misused BB guns at least once, firing at other children, but had failed or refused to get him counseling. Barth, 558 N.E.2d at 531. The boy later purchased stolen guns and hid them in the house. Id. at 530-31. Two weeks later, he and a friend broke into a store to steal ammunition, and when police fired at them as they fled, the boy shot and injured an officer. Id. The court held that the parents were entitled to a directed verdict on the claim of failure to control a child. Id. at 535. The court explained that the BB gun incidents could not "reasonably be interpreted as putting the [parents] on notice that [the boy] was likely to buy a stolen gun, commit a burglary, and shoot a police officer," id. at 534, and there also was no evidence of the opportunity to prevent the shooting since the parents were not present at or nearby the scene. Id. at 535.

¶ 21. In a similar vein, in Wells v. Hickman, 657 N.E.2d 172, 175, 178 (Ind. Ct. App. 1995), a fifteen-year-old boy killed a neighborhood friend outside the presence of the fifteen-year-old's mother. The court refused to impose liability on the mother for failure to control a child despite the fact that the mother knew that her son had violently killed pets, had discussed committing suicide and possibly had been in a fight at school. Id. at 178. The court explained that the two children had played together previously without incident and the mother could not have seen her son's past behavior as a precursor to homicide or even that her son would harm the particular neighbor. Id. According to the court, "[n] either the type of harm inflicted nor the victim in this case was foreseeable and, thus, cannot support the imposition of a duty upon [the mother]." Id.

¶ 22. These factually analogous cases teach that § 316 of the Restatement does not require parents to anticipate and guard against every logically possible instance of misconduct. This is so even where, as here, the parent was aware, or at the very least, should have been aware of the child's past delinquent but dissimilar behavior. See Barth, 558 N.E.2d at 531 (shooting others with a BB gun); Wells, 657 N.E.2d at 178 (violence towards animals, suicidal expressions and a fight at school). "Section 316 does not, after all, purport to make parents vicariously liable for raising careless or delinquent children," Barth, 558 N.E.2d at 535, nor does it intend "to transform parents from care givers and disciplinarians into the jailors and insurers of their minor children." Williamson v. Daniels, 748 So. 2d 754, 761-62 (Miss. 1999) (relying in part on Barth).

Conclusion

¶ 23. The record fails to raise a jury question as to whether Terese knew, or should have known, at the time of the incident, of the necessity and opportunity for exercising control over Franklin so as to prevent him from committing the act of physical violence against Lopez. For that reason, no trial is necessary to determine whether Terese violated her parental duty to control the conduct of a child. We affirm the circuit court's grant of partial summary judgment in her favor.

By the Court. — Order affirmed.

       "Blackjack," as that term is used in this case, refers to a pole or metal rod used by police.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       On appeal, Lopez does not appear to raise an argument concerning his failure to warn claim. "[A]n issue raised in the trial court, but not raised on appeal, is deemed abandoned." A. O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998). Even if he has not entirely abandoned the claim, he has not adequately, and with some prominence, argued the issue for this court to decide. See id. at 491-92. We therefore will not address the failure to warn claim further.

       As Lopez correctly points out, the police did locate what they considered to be drug paraphernalia and a small quantity of marijuana in Franklin's bedroom. However, the items were discovered during a search executed after the February 5 incident. Furthermore, even if Terese knew, or should have known, of the presence of drugs or drug paraphernalia prior to February 5, it would not have put her on notice of the "specific type of harmful conduct" that led to Lopez' injury. See Barth v. Massa, 558 N.E.2d 528, 534-35 (Ill. App. Ct. 1990).

       We also note that Lopez suggests that because Terese home schooled Franklin, her "duty to control and discipline her child went beyond that of a parent — she was also accountable as Franklin's teacher." Lopez cites Lueck v. City of Janesville, 57 Wis. 2d 254, 262, 204 N.W.2d 6 (1973), for the proposition that teachers have a duty to warn or instruct pupils in their custody of any dangers which he or she knows are present and of the methods to protect themselves from those dangers. Lueck, however, described the duty teachers owe to their pupils. Lopez provides no authority for the proposition that a teacher owes a duty to a nonstudent to protect that nonstudent from an injury inflicted by a student off school premises. We therefore decline to address the issue further.


source: Caselaw Access Project

author: VERGERONT, J. DYKMAN, J.

license: Public Domain

text:
    In re the Attorney Fees in In re the Marriage of Elizabeth J. Kohl v. Richard H. Zeitlin Elizabeth J. Kohl, Appellant, v. DeWitt Ross & Stevens, Respondent.
    Court of Appeals

      No. 2004AP328.

      Submitted on briefs August 5, 2004.

      Decided August 11, 2005.

    2005 WI App 196
    (Also reported in 704 N.W.2d 586.)

      On behalf of the appellant, the cause was submitted on the briefs of Richard J. Auerbach, Auerbach & Porter, Madison.
    On behalf of the respondent, the cause was submitted on the brief of Scott K. Petersen, DeWitt Ross & Stevens, S.C., Madison.
    Before Lundsten, PJ., Dykman and Vergeront, JJ.
   VERGERONT, J.

¶ 1. Elizabeth Kohl appeals a judgment awarding attorney fees to her former counsel in this divorce action. She contends the circuit court lacked authority to enter the judgment; she was denied a reasonable opportunity to contest the amount of fees owed; the record does not support the court's determination on the amount owed; and the court lacked authority to freeze her investment account pending resolution of the fee issue. We conclude: (1) the court had authority under Wis. Stat. § 767.23(3)(a) to enter a judgment in favor of Kohl's former counsel and against Kohl for the fees owed; (2) the court did not erroneously exercise its discretion by not giving Kohl more time to contest the fees and she had a reasonable opportunity to contest the fees; (3) Kohl has not shown the amount of fees awarded was error; and (4) the court had the authority to enter the freeze order under § 767.23(l)(h). We therefore affirm. We also deny the law firm's request for attorney fees under Wis. Stat. Rule 809.25(3).

BACKGROUND

¶ 2. Kohl and her former husband, Richard Zeit-lin, jointly initiated this divorce action in October 2001. In April 2002, the court entered an order, pursuant to stipulation, substituting Nancy Wettersten of the firm of DeWitt Ross & Stevens (DeWitt) for the attorney who had initially represented Kohl. A trial was held on the financial issues in October 2002, with the issues of custody and physical placement reserved for trial in April 2003. On December 17, 2002, the court entered a judgment of divorce, which granted the divorce and resolved the financial issues.

¶ 3. On December 30, 2002, Wettersten and DeW-itt moved to withdraw as counsel for Kohl and for a judgment against Kohl in the amount of $14,768.31 for attorney fees. In an accompanying affidavit, Wettersten averred that she and Kohl had disagreements on a number of issues; Kohl had informed Wettersten she intended to find another attorney; Wettersten had concluded that her communication with Kohl had become so dysfunctional she needed to withdraw as Kohl's counsel; Kohl's outstanding balance for fees was $14,768.31; and Kohl had informed her she did not intend to pay it.

¶ 4. At the first hearing on this motion, Kohl, appearing pro se, did not object to Wettersten's withdrawal, but she did object to the attorney fees, contending that Wettersten had billed her for work she had not performed. The court granted the motion to withdraw, concluded that it had authority to consider the matter of attorney fees, and scheduled an evidentiary hearing on the fees.

¶ 5. Subsequently, at Kohl's request, the eviden-tiary hearing on fees was postponed until after the custody and placement issues were decided. In view of that postponement, DeWitt requested that the court enter an order prohibiting Kohl from encumbering or transferring any marital assets until the motion for attorney fees was resolved. Kohl objected to the entry of such an order. At the hearing on this issue in February 2003, Kohl appeared pro se. The court agreed with DeWitt's position that it had the authority to enter such an order under Wxs. Stat. § 767.23(l)(h). The court entered an order prohibiting Kohl from reducing the assets in a particular investment account below $15,000 pending resolution of the motion for a judgment on attorney fees. During the course of this hearing, Kohl indicated to the court that she had been trying to find an attorney to represent her and hoped to have one soon.

¶ 6. In April 2003, the parties appeared in court with an agreement on custody and physical placement. Kohl was represented by new counsel, who had been involved in negotiating this agreement on her behalf. The court adopted the agreement as its order, so no trial on those issues took place.

¶ 7. The hearing on the motion for a judgment on attorney fees took place in October 2003, after postponements requested by both Kohl and Wettersten. The minutes reflect that the hearing was to begin at 8:30 a.m. and the notice stated it was scheduled for ninety minutes. Kohl appeared pro se. Zeitlin was present in the courtroom and Kohl objected to his presence. The court asked him to leave because he was not a party to the motion or a witness and there was a restraining order against him, in relation to Kohl, in another case. Zeitlin left the courtroom at 8:53 a.m. and Kohl, who had been waiting in the court's chambers, entered the courtroom at 8:54 a.m. Just before Wettersten began testifying, the court stated that the proceeding "[was] getting a bit of a late start," there was another matter scheduled for 10:30 a.m., and the parties were to confine their presentations to the one and one-half hour time period.

¶ 8. Kohl cross-examined Wettersten, presented exhibits, and testified herself. At the conclusion of the hearing, the court granted the motion and entered an order for judgment and judgment in the amount of $15,920.96 in favor of DeWitt.

ANALYSIS

¶ 9. On appeal, Kohl argues that the court lacked authority to enter the judgment for attorney fees because Wis. Stat. § 767.23(3)(a) authorizes a court to do so only if another attorney replaces the withdrawing attorney at the time the attorney withdraws, and that did not happen here. She also argues that she was denied a reasonable opportunity to dispute the fee request, the record does not support portions of the court's determination on the amount of fees, and the court lacked the authority to freeze her investment account pending a determination of the fees owed. DeWitt responds that § 767.23(3)(a) authorizes the court to enter a judgment for attorney fees for an attorney who is permitted by the court to withdraw even if no other attorney is substituted. DeWitt also asserts that Kohl had a reasonable opportunity to contest the amount of fees, the record supports the court's determination, and the issue of the court's authority to freeze the investment account is now moot. Finally, DeWitt requests attorney fees for the appeal on the ground that it is frivolous.

I. Court's Authority Under Wis. Stat. § 767.23(3)(a)

¶ 10. Wisconsin Stat. § 767.23(3)(a) provides:

Upon making any order for dismissal of an action affecting the family or for substitution of attorneys in an action affecting the family or for vacation of a judgment theretofore granted in any such action, the court shall prior to or in its order render and grant separate judgment in favor of any attorney who has appeared for a party to the action and in favor of any guardian ad litem for a party or a child for the amount of fees and disbursements to which the attorney or guardian ad litem is, in the court's judgment, entitled and against the party responsible therefor.

¶ 11. The parties' dispute centers on the proper construction of "any order ... for substitution of attorneys . . . ." The construction of a statute presents a question of law, which we review de novo. Fox v. Catholic Knights Ins. Soc., 2003 WI 87, ¶ 19, 263 Wis. 2d 207, 665 N.W.2d 181.

¶ 12. When we construe a statute, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language 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 we interpret it reasonably, so as to avoid absurd or unreasonable results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48. If, employing these principles, there is a plain, clear, statutory meaning then we apply this meaning. Id., ¶ 46.

¶ 13. Kohl argues that the common meaning of "substitution of attorneys" is that one attorney takes over for another at the same time that the first attorney withdraws. As we understand Kohl's argument, even though Kohl did retain another attorney after the court permitted Wettersten to withdraw, that did not happen at the same time as Wettersten's withdrawal, and, in the interim, Kohl proceeded pro se. Therefore, according to Kohl, there was no substitution of attorneys.

¶ 14. While it may be that Kohl's construction gives the term "substitution of attorneys" its common meaning when the term is read in isolation, her construction is not reasonable when the term is considered in context and in light of the purpose of the paragraph. The manifest purpose of Wis. Stat. § 767.23(3)(a) is to provide an expeditious procedure for determining the amount of fees that attorneys in actions affecting the family (as well as guardians ad litem) are owed in the three identified situations. The legislature has evidently made the policy decision that in these three situations there should be a procedure to facilitate the prompt determination and payment of fees owed.

¶ 15. The result of Kohl's construction is unreasonable because it ties an attorney's ability to obtain a judgment for attorney fees owed him or her to events wholly unrelated to any discernible purpose of the statute. Whether a client has another attorney ready to step in as soon as the first attorney withdraws, as opposed to proceeding pro se for a short time, as here, or for the entire action remaining, has no rational relationship to whether the first attorney should have available to him or her this expeditious manner of obtaining a judgment for attorney fees owed. Instead, which of those events occurs is within the client's control, or, perhaps, within the control of market forces (that is, availability and cost of another attorney); it is certainly not within the control of the withdrawing attorney. In addition, the benefits of this procedure to the withdrawing attorney, as well as any burden or benefit it may have for the client, is not affected by whether another attorney takes over immediately, sometime later, or not at all.

¶ 16. Kohl argues that there is a distinction between "substitution of attorneys" and an attorney's withdrawal in that the former requires the consent of the client while the latter sometimes occurs without the client's consent. However, this distinction does not provide a reasonable basis for Kohl's construction. The "consent" she refers to is the new attorney's representation. Obviously, no new attorney replaces a withdrawing attorney without the consent of the client. However, Wis. Stat. § 767.23(3)(a) is not addressed to the new attorney. As for the withdrawal of an attorney, that may he with or without the client's consent; and whether the client did or did not consent has no apparent relationship to whether the client will decide to obtain another attorney or proceed pro se upon the attorney's withdrawal.

¶ 17. The facts of this case provide an illustration of the arbitrary result of Kohl's construction. The record shows that Kohl did not want Wettersten to continue to represent her and made that decision before she had another attorney — unlike the sequence of events that occurred when Wettersten replaced Kohl's first attorney. Kohl made efforts to find another attorney to replace Wettersten and was ultimately, though not immediately, successful. Under Kohl's construction, had she not told Wettersten she wanted her to withdraw until after she found another attorney, the court would have had the authority to enter the judgment it did.

¶ 18. Kohl argues that Kotecki & Radtke, S.C. v. Johnson, 192 Wis. 2d 429, 441, 531 N.W.2d 606 (Ct. App. 1995), supports her construction of Wis. Stat. § 767.23(3)(a). In Kotecki, the issue was whether the circuit court correctly dismissed a separate action initiated by a law firm to collect unpaid fees from a former client in a divorce action. The circuit court concluded that the attorney had to seek a judgment under § 767.23(3)(a) when he moved to withdraw and was therefore barred from initiating a separate action. We disagreed. We concluded "there is nothing in § 763.23(3)(a), Stats., that gives a circuit court sitting in a divorce action 'precedence' over other courts to resolve a fee dispute such as the one presented to us in the principle case." Id. at 441-42. Accordingly, we held the attorney could properly bring a separate action for fees. Id. at 442.

¶ 19. The particular language in Kotecki on which Kohl relies is language referencing the supreme court's in decision in Stasey v. Miller, 168 Wis. 2d 37, 483 N.W.2d 221 (1992):

Thus, the supreme court [in Stasey] strictly construed § 767.23(3)(a), Stats., to apply to those situations expressly set forth in the statute, i.e., orders for "dismissal of action affecting the family," "substitution of attorneys in an action affecting the family," and "vacation of a judgment theretofore granted in any such action."

Kotecki, 192 Wis. 2d at 441.

¶ 20. However, the supreme court in Stasey did not construe Wis. Stat. § 767.23(3)(a), because the parties there agreed that subsec. (3) (a) — as well as the other sections in Wis. Stat. ch. 767 expressly addressing fees — did not apply to the situation where the attorney continued to represent the client. Stasey, 168 Wis. 2d at 50-51. Instead, the attorney in Stasey was asking the supreme court to rule that, notwithstanding the lack of statutory authority, the circuit court presiding over the divorce action has the authority to resolve a fee dispute between the client and the attorney still representing her in certain limited circumstances. Id. at 56-57. The supreme court declined to do so, concluding that the legislature did not intend the circuit court to have that authority. The supreme court relied on the absence of express statutory authorization, the absence of case law support, and the ethical problems for the attorney and disadvantages to the client if the court were to resolve a fee dispute while the client was still being represented by the attorney in the divorce action. Id. at 57-59.

¶ 21. When read in the context of Stasey, the quotation from Kotecki on which Kohl relies is a statement of the established principle that a divorce court's power is limited to what is set forth in the statutes, a principle that was fundamental to the Stasey court's analysis. See Stasey, 168 Wis. 2d at 48. This principle, of course, also applies in this case. However, it does not determine the outcome because we must nonetheless construe Wis. Stat. § 767.23(3)(a) according to the principles of statutory construction we have cited above in paragraph 12. As Kohl recognizes in her reply brief, because neither party in Kotecki attached any significance to withdrawal from representing a client as opposed to "terminating .. . representation via a substitution of counsel," we did not address this issue.

¶ 22. As noted above, the Stasey court also did not address this issue, because the attorney there was still representing the client. However, in its brief reference to Wis. Stat. § 767.23(3)(a), the Stasey court described it as "apparently protecting] attorneys only when either the court or the attorney will no longer be connected with the action affecting the family. O'Connor v. O'Connor, 48 Wis. 2d 535, 540, 180 N.W.2d 735 (1970)." Stasey, 168 Wis. 2d at 50. This characterization is consistent with construing "substitution of attorneys" to mean the withdrawal of an attorney whether or not another attorney immediately takes over, does so at some later time, or not at all. The critical factor is that the attorney whose fees the court will be adjudicating is no longer representing the client.

¶ 23. We conclude the only reasonable meaning of Wis. Stat. § 767.23(3)(a) is that it gives the court in an action affecting the family the authority to enter a judgment for the fees owed by the client to an attorney who is permitted by order of the court to withdraw, regardless when or if the client retains another attorney to replace the withdrawing attorney in that action. Accordingly, we agree with the circuit court that it had the authority to grant the motion for a judgment of the fees Kohl owed DeWitt.

II. Opportunity to be Heard

¶ 24. Kohl next argues that the evidentiary hearing was not long enough, and she was therefore denied a reasonable opportunity to dispute the fee request. Kohl points out that when the parties first discussed scheduling the evidentiary hearing with the court, they both said one day would be needed; the court appeared to accept that length, she asserts, but the notices allotted only ninety minutes. Kohl also points out that the hearing started late because of her husband's presence in the courtroom, and she asserts this unfairly reduced her time.

¶ 25. As Kohl recognizes, a court has the discretion to control its calendar and to decide how much time to allot to particular matters. See Carlson Heating, Inc. v. Onchuck, 104 Wis. 2d 175, 180-81, 311 N.W.2d 673 (Ct. App. 1981) ("Every court has inherent power, exercisable in its sound discretion, consistent within the constitution and statutes, to control the disposition of [cases] on its docket with economy of time and effort."). We affirm a court's exercise of discretion in this regard if it acts reasonably. Id. We conclude the court acted reasonably in not allowing Kohl more time for a number of reasons.

¶ 26. First, we do not agree with Kohl's argument that ninety minutes is, as a matter of law, an unreasonable length of time for a hearing on the dispute over attorney fees in this case. Second, it is clear from the record that Kohl was notified in advance that the court had allotted ninety minutes, and she did not contact the court to ask for more time prior to the hearing. Third, the record does not bear out Kohl's assertion that she had less time because her husband appeared. After her husband left and Kohl came into the courtroom, it was almost 9:00 a.m., and the court told the parties they had ninety minutes until the next scheduled matter at 10:30 a.m. Fourth, the record shows the court did not cut Kohl off without warning, but gave her sufficient reminders of the time remaining and the need to be more focused in her presentation. Fifth, the record shows that Kohl spent time on matters that had little relevance to the issue of the amount of fees she owed, such as questioning why Attorney Wettersten took certain actions when Kohl wanted her to take others. Sixth, Kohl does not specifically explain on appeal what additional information she would have presented had the court given her more time.

¶ 27. We conclude the court did not erroneously exercise its discretion in not allowing Kohl more time and that Kohl had a reasonable opportunity to present her case.

III. Determination on Amount of Fees

¶ 28. Kohl argues that the record did not support the amount of fees ordered by the court. To the extent Kohl is challenging the circuit court's findings of fact, we accept those unless they are clearly erroneous. Wis. Stat. § 805.17(2). To the extent Kohl is challenging the court's determination of what fees are reasonable, we affirm the circuit court if it properly exercised its discretion, that is, if it employed a logical rationale based on the correct legal principles and the facts of record. Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶ 22, 275 Wis. 2d 1, 683 N.W.2d 58 (citations omitted). Applying these standards, we conclude that Kohl has not shown any error in the court's determination of the amount of fees.

¶ 29. First, Kohl argues that time billed for Roslyn Thomas should not have been charged as paralegal time because she was told Thomas is a secretary, and the fee agreement provided that secretarial time is not charged. The circuit court found that "[m]any of the charges for Ms. Thomas, whether she also does secretarial work, appear to be for paralegal type services." Kohl does not argue that the record does not support this finding, but instead appears to argue that, regardless of the tasks Thomas performed, if she did not have "paralegal status," Kohl could not be billed for her time at paralegal rates. Kohl does not develop an argument to support this based on the contract language, and she points to no evidence in the record that establishes that Thomas does not have the "status" necessary to perform the tasks of a paralegal.

¶ 30. Second, Kohl argues that it was "unreasonable" and "absurd" for Wettersten to charge her for listening to a message left with a secretary advising counsel that Kohl was running late for a meeting. She cites no legal authority or fee agreement provision that either prevents attorneys from charging for such time, or makes it unreasonable or absurd.

¶ 31. Third, Kohl argues that the court improperly allowed DeWitt to bill Kohl for the legal work it performed in connection with its motion for a judgment on attorney fees. The firm responds that this issue is raised for the first time on appeal, and Kohl does not dispute that assertion in her reply brief. We therefore do not address the issue further. See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980), superceded on other grounds by Wis. Stat. § 895.52 (we generally do not address issues for the first time on appeal).

IV Freeze Order

¶ 32. Kohl argues that the court lacked authority under to Wis. Stat. § 767.23(1)(h) to grant DeWitt's request to freeze $15,000 worth of her assets in the investment account. This statute gives the court the authority "during the pendency" of an action affecting the family, to "prohibitQ ... either party from disposing of assets within the jurisdiction of the court." Kohl asserts that this provision was intended to protect each party from adverse actions by the other, not to protect attorneys. However, no such limitation is even arguably apparent from the statutory language or the context of the statute. Kohl also argues that the court's authority exists only up to the time that the judgment of divorce is granted, because after that the action is not "pending." However, at the time the court entered the freeze order in this case, although it had granted the divorce, the issues of custody and placement, as well as the motion for attorney fees, remained to be resolved. The only reasonable construction of the statute is that this action affecting the family was still "pending" when the court entered the freeze order.

V Attorney Fees for Frivolous Appeal

¶ 33. DeWitt requests attorney fees on the ground that this appeal is frivolous under Wis. Stat. Rule 809.25(3). According to DeWitt, the appeal lacks a reasonable basis in fact and law.

¶ 34. In order for a party to be entitled to fees under Wis. Stat. Rule 809.25(3), every issue raised on appeal must be frivolous. Baumeister v. Automated Prods., Inc., 2004 WI 148, ¶ 34, 277 Wis. 2d 21, 690 N.W.2d 1. Although we have decided against Kohl on the proper construction of Wis. Stat. § 767.23(3)(a), we conclude her position on that issue was not frivolous. We therefore deny the request for attorney fees.

By the Court. — Judgment affirmed.

DYKMAN, J.

¶ 35.

(concurring in part; dissenting in part). Kohl asserts that unless we interpret Wis. Stat. § 767.23(3)(a) (2003-04) as not permitting the trial court to award attorney fees, that statute violates article I, § 5 of the Wisconsin Constitution. I agree with the majority that § 767.23(3)(a) permitted the court to award attorney fees to DeWitt Ross and Stevens. But the majority fails to address whether the statute is unconstitutional. I would address the question presented, and conclude that the statute violates article I, § 5 of the Wisconsin Constitution.

¶ 36. To begin with, the majority misinterprets Kohl's argument. She does not argue that the statute would be constitutional if attorney fees could only be awarded if there was a substitution of attorneys. Nor do I agree with the majority that Kohl has not developed her argument. Kohl's argument is not complex. Article I, § 5 of the Wisconsin Constitution provides: "The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy...." Kohl asserts that a dispute over attorney fees that leads to a judgment against her is a case at law. That is what the following, easily obtained authority provides. There is little to develop.

¶ 37. The supreme court recently explained the meaning of article I, § 5 in Dane County v. Kenneth R. McGrew, 2005 WI 130, 285 Wis. 2d 519, 699 N.W.2d 890. Though a divided court in McGrew issued two plurality opinions, the opinions do not differ in their description of the analysis we are to use when considering whether a statute violates article I, § 5 of the Wisconsin Constitution. Both cite Village Food and Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92, ¶ 11, 254 Wis. 2d 478, 647 N.W.2d 177, for the proposition that " 'a party has a constitutional right to have a statutory claim tried to a jury when: (1) the cause of action created by the statute existed, was known, or was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848; and (2) the action was regarded at law in 1848.'" McGrew, 285 Wis. 2d 519, ¶ 18 (Prosser, J., joined by Wilcox, J. Roggensack, J.), ¶ 53 (Bradley, J., concurring, joined by Abrahamson, C.J., Crooks, J.).

¶ 38. In Village Food, a motor vehicle fuel seller brought a claim against another motor vehicle fuel seller under Wis. Stat. § 100.30(5m). That provision gives a cause of action to a person who is injured by a violation of other parts of the statute. Likewise, Wis. Stat. § 767.23(3)(a) gives attorneys a cause of action for their fees in actions affecting the family. Both causes of action are contained in larger statutory schemes. Village Food's cause of action is found in Wis. Stat., Ch. 100, entitled "Marketing; Trade Practices." Kohl's is found in Wis. Stat., Ch. 767, entitled "Actions Affecting the Family." Though the regulatory scheme in Ch. 100 did not exist in 1848, the court focused on the private cause of action in § 100.30(5m) and noted: "H & S ha[d] a constitutional right to have its statutory claim tried to a jury because the cause of action created by the statute existed, was known, and was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848." Village Food, 254 Wis. 2d 478, ¶ 30.

¶ 39. Likewise, divorce cases, with certain exceptions not relevant here, have never been tried to juries. Wisconsin Stat. Ch. 79, § 15 (1849), provided that divorce suits "shall be conducted in the same manner as other suits in courts of equity...." Matters in equity are not tried to juries. Stilwell v. Kellogg, 14 Wis. 499, 503-04 (1861). While section 16 of the chapter permitted courts to require husbands to pay "any sums necessary to enable the wife to carry on or defend the suit, during its pendency, and it may decree costs against either party, and award execution for the same," Wis. Stat. Ch. 79, § 16 (1849), attorney fees, not costs, are at issue here.

¶ 40. Using the Village Foods test, I conclude that the cause of action created by the statue existed, was known or was recognized at common law in 1848. It would seem intuitive to lawyers that we have been suing for fees since the time the profession became known. And predictable that twenty percent of the sections in West's Wisconsin Key Number Digest under the heading "Attorney and Client" are devoted to "Fees and other remuneration." While I find no attorney fee cases from 1848, the existence of the cause of action appears well settled by 1862 when the supreme court decided Butler v. Mitchell, 15 Wis. 389, [*355] (1862), an action to recover attorney fees. I conclude that the first prong of the Village Foods test is met.

¶ 41. The second prong of the Village Foods analysis is whether the action was regarded at law in 1848. I conclude that it was. The distinction was described in Gaston v. Babcock, 6 Wis. 490, [*503], 494, [*506] (1857): "We think that 'cases at law' as these words are used in the constitution, are not [proceedings for the appointment of a guardian]. Cases at law are properly controversies between parties, and not the appointment of guardians for minors or insane persons." The distinction between cases where money damages are alleged and those where other relief is sought was discussed in McLennan v. Church, 163 Wis. 411, 416, 158 N.W. 73 (1916):

In case of an action having been commenced in good faith to obtain equitable relief, and it subsequently appearing that such rebef cannot, or ought not to be, granted, but the facts disclosed by the evidence show that plaintiff has suffered a remediable wrong in the transaction forming the groundwork of the action, entitling him to be compensated by money damages, the court may, and where justice clearly requires it under the circumstances, should retain the cause and afford such relief, and make the same efficient by provisions for a recovery as in an ordinary legal action ....

¶ 42. A suit for attorney fees seeks money damages, and asserts a contractual right to those damages. In Dilger v. Estate of McQuade, 158 Wis. 328, 331, 148 N.W. 1085 (1914), the court noted: "An action for damages for breach of a contract is triable by jury in the circuit court as a matter of right."

¶ 43. I conclude that a suit for attorney fees was regarded as "at law" in 1848 because it was a suit on contract or quasi-contract, and because such a suit seeks money damages. Both prongs of the analysis of an asserted article I, § 5 right to a jury trial having been met, I would reverse and remand to permit the trial court to empanel a jury to hear Kohl's defenses to DeWitt, Ross and Stevens's claim for attorney fees. Since the majority does not do so, though I concur in much of its opinion, I dissent from its refusal to address the issue of Kohl's right to a jury trial on Dewitt, Ross & Stevens's claim for attorney fees.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       On the minutes sheet, Kohl's new attorney, Richard Auer-bach, is identified as "GAL," but he was not the guardian ad litem in this case, and it is clear from the transcript that he was representing Kohl.

       The notice is not in the record, but the court during the hearing stated that the notice said the hearing was scheduled for ninety minutes.

       The limited circumstances identified by the attorney, which tracked the facts of that case, were:
      the client has asked the attorney to withdraw as counsel; the attorney has sought the circuit court's permission to withdraw as counsel; the opposing party in the divorce action objects to an adjournment or continuance of the trial; the circuit court concludes that the fee dispute arose from an "overtrial" caused by the client; the circuit court denies the attorney's motion to withdraw unless the client proceeds either pro se or with newly retained counsel who would proceed with the trial as scheduled; and the attorney continues to represent the client because the client does not wish to proceed pro se and cannot obtain new counsel under the conditions set by the circuit court.

        Stasey v. Miller, 168 Wis. 2d 37, 57, 483 N.W.2d 221 (1992).

       Kohl also argues that we should construe the statute as she proposes because, she asserts, if the fees are allowed in this case, it will have the effect of depriving her of her constitutional right to a jury trial in the fee dispute with her former attorney, and we should avoid an interpretation that causes the statute to become unconstitutional. Kohl does not explain why the statute would be unconstitutional as applied to her, but not unconstitutional if there were a "substitution of attorneys" as she construes that term; and she does not, in any event, sufficiently develop the constitutional argument. Her argument on this issue consists of the following:
      Strict construction is appropriate, as § 767.23(3)(a), Stats., operates to preclude a dissatisfied client from exercising her right to a trial by jury. In an ordinary fee dispute between an attorney and client, a lawsuit is filed, with each side having the right to civil discovery, the right to a trial by jury, the right to substitution of judge, and other similar procedural rights. In a fee dispute between a party in a divorce action and her own attorney, no jury trial is permitted, and it is questionable whether civil discovery methods are available (can the attorney serve her own client with interrogatories or be deposed within the aegis of the family case?). Because § 767.23(3)(a), Stats., operates to deny an aggrieved client her right to jury, and because our constitution provides that "[t]he right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy . ..," Article I, § 5, Wisconsin Constitution, this Court should not extend the scope of § 767.23(3)(a), Stats., to an attorney's unilateral withdrawal.

      1‘One could argue that § 767.23(3)(a), Stats., is unconstitutional in light of the fact that an attorney's right to be compensated is a contractual matter, contracts are matters of law, not equity, and the cited constitutional provision precludes a denial of a jury trial in cases at law. Because constitutional issues are reached only if necessary, and because this case involves a "withdrawal" and not one of the expressed bases for invocation of § 767.23(3)(a), Stats., we point out the concern solely to support the use of a narrow construction of this statute.
      Unlike the dissent, we do not consider this a sufficient development of the argument that the statute as applied to her — or in general — is unconstitutional. We therefore do not address it further. See Dumas v. State, 90 Wis. 2d 518, 523, 280 N.W.2d 310 (Ct. App. 1979).

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.


author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Timothy J. Johnson, Defendant-Appellant.

    Court of Appeals

      No. 2004AP2176-CR, 2004AP3031-CR.

      Submitted on briefs April 18, 2005.

    Decided August 16, 2005.

    2005 WI App 202
    (Also reported in 704 N.W.2d 318.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jo C. Vandermause of Appleton.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Jeffrey J. Kassel, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 10-14-05.

   CANE, C.J.

¶ 1. Timothy Johnson appeals judgments ordering him confined in the county jail for consecutive nine-month periods as a condition of probation and an order denying his motion for postconviction relief. Johnson argues the trial court had no statutory authority to order consecutive periods of conditional jail time. He argues alternatively that requiring him to serve a total of eighteen months in jail as a condition of probation violates Wis. Stat. § 973.09(4)(a), which gives trial courts the authority to order jail time "during such period of the term of probation as the court prescribes, but not to exceed one year." Because Johnson is serving separate probationary terms, we reject his arguments and affirm the judgments and order.

Background

¶ 2. On September 26, 2003, Johnson entered a no contest plea to one count of failure to pay child support. Several weeks later, on November 10, 2003, Johnson pled guilty to two counts of delivery of cocaine. He was found guilty in both cases on the respective days on which he entered his pleas. He was not sentenced for either crime, however, until January 24, 2004. At that time, the trial court withheld sentence on the child support conviction, placing Johnson on probation for five years. As a condition of probation, Johnson was ordered to serve nine months in the county jail. The court also withheld sentence on both drug counts, placing Johnson on probation for twelve years. As a condition of probation, Johnson was ordered to serve nine months in the county jail. Finally, the trial court ordered that the terms of probation in the drug cases and the child support case be concurrent, but made the periods of conditional jail time consecutive to each other. Johnson was thus required, as a condition of probation, to serve a total of eighteen months in the county jail.

¶ 3. Johnson filed a motion for postconviction relief in the drug cases, arguing that the second nine months of jail time was an unlawful condition of probation. After a hearing, the trial court orally denied his motion. Johnson now appeals.

Discussion

¶ 4. When we interpret a statute, our goal is to ascertain and give effect to its intended purpose. See, e.g., Wenke v. Gehl Co., 2004 WI 103, ¶ 32, 274 Wis. 2d 220, 682 N.W.2d 405. To achieve that goal, we begin with the language of the statute. State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning of the statute is clear when we give its words their commonly accepted meanings, we ordinarily stop the inquiry. Id. Context and the structure of the statute in which the questioned language appears may also be critical to establishing the meaning of particular words and phrases. Id., ¶ 46. The language of a statute is not interpreted in isolation, but as part of a larger text, and in relation to the language of surrounding or closely related statutes. Id.

¶ 5. A statute is ambiguous, according to the most common formulation of the test, if it is capable of being understood by reasonably well-informed persons in two or more senses. Id., ¶ 47. To resolve ambiguity in a statute's language, we may move beyond the text of the statute to extrinsic evidence about the scope, history, context, and purpose of the statute. See State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶ 18, 236 Wis. 2d 473, 613 N.W.2d 591. But our aim remains the same: to determine what the statute means so it can be given its full, proper, and intended effect. Kalal, 271 Wis. 2d 633, ¶ 44.

¶ 6. Johnson argues first that the trial court had no authority to order, as a condition of probation, two consecutive periods of jail time. The State counters that a trial court has the power "to impose any conditions [of probation] which appear to he reasonable and appropriate." Wis. Stat. § 973.09(l)(a). That broad discretion is constrained, the State further asserts, only to the extent that a probation condition is expressly or specifically limited by another statute. See State v. Oakley, 2000 WI 37, ¶¶ 26-27, 234 Wis. 2d 528, 609 N.W.2d 786.

¶ 7. On that limited point, we agree with the State. Under Wis. Stat. § 973.09(4)(a), trial courts have the explicit authority to require a probationer to be confined in the county jail "during such period of the term of probation as the court prescribes." We have concluded elsewhere that the authority to impose conditional jail time includes the authority to stay time as well as the authority to fix the specific time a probationer must spend in jail. State v. Edwards, 2003 WI App 221, ¶¶ 11-12, 22, 267 Wis. 2d 491, 671 N.W.2d 371. The principles of Edwards thus dictate that a trial court also has the power to delay imposing conditional jail time until after some other event, such as a program or another period of conditional jail time, has occurred.

¶ 8. The problem here is therefore not when the periods of conditional jail time were imposed, but how long the total period of confinement is. The court's authority to impose jail time as a condition of probation is expressly limited to "such period of the term of probation as the court prescribes, but not to exceed one year." Wis. Stat. § 973.09(4)(a). The State argues that the one-year limit on conditional jail time does not apply in this case because Johnson is not serving a single probationary term. Johnson contends that the phrase "term of probation" refers to a single period of probation associated with multiple convictions at the same time. He further contends that he was convicted at the same time for the drug and child support cases because he was sentenced on the same day in both cases.

¶ 9. The language of Wis. Stat. § 973.09, the general probation statute, supports Johnson's contention that the phrase "term of probation" refers to a single unit of time that may be extended to reflect multiple convictions. The statute provides that the original term of probation for misdemeanors shall be "not less than 6 months nor more than 2 years," Wis. Stat. § 973.09(2)(a)l., while the original term of probation for felonies is "not less than one year nor more than either the maximum term of confinement... or 3 years." Wis. Stat. § 973.09(2)(b)l. If the probationer is convicted of multiple misdemeanors at the same time, the maximum original term of probation may be increased by a year. Wis. Stat. § 973.09(2)(a)2. Similarly, if a probationer is convicted of two or more crimes, including at least one felony, at the same time, the maximum original term of probation may be increased by one year for each felony conviction. Wis. Stat. § 973.09(2)(b)2. If Johnson was convicted at the same time in his drug and child support cases, those crimes would, as the State apparently concedes, give rise to a single "term of probation," which in turn would mean that the one-year limit on conditional jail time applied to that term.

¶ 10. Thus, the critical question is whether Johnson was convicted at the same time in the drug and child support cases. To answer that question, we must decide whether conviction occurs, for the purposes of Wis. Stat. § 973.09, at the time a guilty plea is entered or at the time of sentencing and the entry of judgment.

¶ 11. Johnson argues that the word conviction is ambiguous. Like courts in other jurisdictions, Wisconsin courts have repeatedly recognized that conviction can refer either to the finding of guilt or to the entire procedural process resulting in a judgment and sentence. See, e.g., State v. Wimmer, 152 Wis. 2d 654, 658, 449 N.W.2d 621 (Ct. App. 1989). Because Wis. Stat. § 973.09 neither defines conviction nor clearly indicates which meaning of conviction is intended, we conclude that conviction is ambiguous in the probation statute as well. To resolve that ambiguity, we look both to extrinsic evidence of legislative intent and to our interpretation of the word conviction in similar or related statutes.

¶ 12. The legislative history of the provisions provides little insight into what the legislature intended when, in 1965, it first granted trial courts the authority to impose jail time as a condition of probation. There is no discussion of the new provision, which sets out the parameters for ordering conditional jail time that still govern trial courts today:

[t]he court may also require as a condition of probation that the probationer be confined in the county jail between the hours or periods of his employment during such portion of his term of probation as the court specifies, but not to exceed one year.

Wis. Stat. § 973.09(4)(a) (1965). Nor are there any-drafting records or revisions that might clarify the purpose of adding jail time to the broad array of conditions that can be imposed on probationers. At the time the provision was added, the probation statute contained no reference to multiple convictions. It simply set out the temporal parameters of the probationary period: "[t]he original term of probation shall not be less than one year nor more than either the statutory maximum... or 3 years, whichever is greater." Wis. Stat. § 57.01(3) (1965).

¶ 13. In the late 1960s, as part of a complete reworking of Wisconsin criminal procedure, the probation statute was revised to give trial courts the authority to make the period of probation consecutive to a sentence on a different charge whether "imposed at the same time or previously." The revised statute also clarified how a "term of probation" was to be calculated. Under what now became Wis. Stat. § 973.09(2) (1969), "the original term of probation shall be: (a) For misdemeanors, not more than two years; (b) For felonies, not less than one year nor more than either the statutory maximum ... or 3 years."

¶ 14. Wisconsin. Stat. § 973.09(2) was revised again in 1983 to allow trial courts to increase the original term of probation when there were multiple convictions at the same time. Analysis by the Legislative Reference Bureau indicates the revision was a response to a decision of this court and an Attorney General's Opinion, both of which said courts could not impose consecutive periods of probation when a defendant was "convicted" of multiple crimes at the same time. Comments on the estimated cost of this change explain: This legislation is intended to place an offender on probation for a longer period of time if there are multiple misdemeanor or felony convictions.

¶ 15. The legislative history thus indicates a clear intent to increase the length of the probationary period for convictions at the same time, hut provides no insight into what the legislature meant by conviction. Thus, we turn to our interpretation of the term in other statutes.

¶ 16. In Wimmer, we found conviction ambiguous, and concluded that it meant adjudication of guilt for the purposes of the repeat offender statute. See Wimmer, 152 Wis. 2d at 659. Although we declined to make a "blanket pronouncement" about whether that definition applied to other penal statutes, we noted a preference, supported by supreme court dicta, for the more popular meaning of adjudication of guilt. Id. at 658-59. We found "most persuasive" the legislative history of the repeater statute, a history clearly indicating an intentional shift in the focus of the statute from past sentence to past crime. Id. at 661-62. Because prior sentencing had become irrelevant for the purposes of the statute, we determined that it made no sense to interpret conviction as referring to sentencing. Id. at 662-63.

¶ 17. Using similar logic, we have also determined that conviction occurs upon adjudication of guilt for the purposes of the sentencing guideline scoresheets. State v. Smet, 186 Wis. 2d 24, 29-30, 519 N.W.2d 697 (Ct. App. 1994) (noting we saw "no reason" to deviate from Wimmer and that consistency promotes certainty and a uniform application of the law). Finally, an accepted guilty plea constitutes a conviction for the purposes of impeachment testimony under Wis. Stat. § 906.09(1). State v. Trudeau, 157 Wis. 2d 51, 54, 458 N.W.2d 383 (Ct. App. 1990). In that case, we drew specific parallels with Wimmer — it is the criminal act, not the sentence or punishment, that is the basis for the impeachment —and therefore decided the question not by reference to legislative history but based on the policies implicated by the statute. Trudeau, 157 Wis. 2d at 53-54.

¶ 18. Conviction has been defined differently, however, in other contexts. In termination of parental rights proceedings, for example, we concluded that conviction means a conviction "after the right of appeal has been exhausted." In re Kody D.V., 200 Wis. 2d 678, 681, 548 N.W.2d 837 (Ct. App. 1996). Our decision there rested primarily on the parent's fundamental liberty interest in not being deprived of a child, and the statute's concern with balancing the child's and the parent's interests. We have also concluded that "a conviction does not occur until a sentence is imposed" for the purposes of calculating the number of convictions for operating while intoxicated. State v. Matke, 2005 WI App 4, ¶ 12, 278 Wis. 2d 403, 692 N.W.2d 265.

¶ 19. Johnson argues that, in the absence of guidance from the legislative history, we must construe Wis. Stat. § 973.09 strictly against the State and in favor of the milder penalty. See State v. Morris, 108 Wis. 2d 282, 289, 322 N.W.2d 264 (1982). We are not persuaded.

¶ 20. As we observed elsewhere:

[t]he rule of strict construction does not mean that only the narrowest possible construction must be adopted in disregard of the statute's purpose. A statute should be construed to give effect to its leading idea and should be brought into harmony with its purposes.

State v. O'Neil, 141 Wis. 2d 535, 540, 416 N.W.2d 77 (Ct. App. 1987). Wisconsin Stat. § 973.09(4)(a) allows trial courts the option of using jail time as one of the conditions of probation to pursue the goals of probation, including rehabilitation. See State v. Avila, 192 Wis. 2d 870, 881-82, 532 N.W.2d 423 (1995). That option is limited by statute to a maximum of one year for each term of probation. A term of probation is determined, as the probation statute mandates, by working from a base "original term" and lengthening the original term for multiple simultaneous convictions. We see no reason, however, to expand the number of convictions potentially encompassed by a single "term of probation" by construing "convicted at the same time" to mean sentenced at the same time. Such a reading could, among other things, encourage parties to manipulate court schedules for the purpose of stacking sentencing hearings. We also agree with the State that consistency supports reading § 973.09 as we have read other sentencing statutes, and interpreting conviction as referring to the adjudication of guilt. Because we conclude that Johnson was not convicted at the same time in the child support and drug cases, and therefore not serving a single probationary term, the trial court had the statutory authority to order consecutive periods of conditional jail time.

By the Court. — Judgments and order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Johnson was originally charged with two counts of cocaine delivery within one thousand feet of a park, maintaining a drug trafficking place, possession of THC, and possession of drug paraphernalia. Under the terms of his plea agreement, the park enhancers were dropped and the other charges dismissed.

       Wisconsin Stat. § 973.09 provides:

        Probation. (1) (a) Except as provided in par. (c)... if a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under s. 973.15 and stay its execution, and in either case place the person on probation to the department for a stated period, stating in the order the reasons therefor. The court may impose any conditions which appear to he reasonable and appropriate. The period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously....
      (2) The original term of probation shall be:
      (a) 1. Except as provided in subd. 2., for misdemeanors, not less than 6 months nor more than 2 years.
      2. If the probationer is convicted of not less than 2 nor more than 4 misdemeanors at the same time, the maximum original term of probation may be increased by one year. If the probationer is convicted of 5 or more misdemeanors at the same time, the maximum original term of probation may be increased by 2 years.
      a. 1. Except as provided in subd. 2., for felonies, not less than one year nor more than either the maximum term of confinement in prison for the crime or 3 years, whichever is greater.
      2. If the probationer is convicted of 2 or more crimes, including at least one felony, at the same time, the maximum original term of probation may be increased by one year for each felony conviction.
      (4) (a) The court may also require as a condition of probation that the probationer be confined during such period of the term of probation as the court prescribes, but not to exceed one year.

       Johnson originally filed a notice of appeal with regard to that denial, but this court concluded, on September 23, 2004, that we could only review the judgment of conviction because no written order denying the postconviction motion had been entered. A written order denying Johnson's original postconviction motion was entered in November 2004, Johnson filed a second notice of appeal, and we consolidated the appeals in the drug and child support cases.

       Multiple here means not less than two misdemeanors nor more than four. See Wis. Stat. § 973.09(2)(a)2.

       Our supreme court first recognized this duality of meaning almost a century ago. See Davis v. State, 134 Wis. 632, 638, 115 N.W 150 (1908) (citing Commonwealth v. Gorham, 99 Mass. 420, 422 (1868)).

         See Wis. Stat. §57.01(6) (1965), created by 1965 Wis. Laws, ch. 394, § 2.

       Wis. Stat. § 973.09 (1969) was created by 1969 Wis. Laws, ch. 255, § 63.

        See Wis. Stat. § 973.09(2) (1984) (renumbered and amended by 1983 Wis. Act 519, §§ 2-5).

        See LRB-4278/4, Legislative Reference Bureau, Analysis, citing State v. Gereaux, 114 Wis. 2d 110, 338 N.W.2d 118 (Ct. App. 1983), and 69 Op. Att'y Gen. 173 (1980). Revisions to the draft of the bill make it clear the legislature initially sought to authorize consecutive periods of probation, but decided instead to increase the possible term of probation for multiple simultaneous convictions.

        See Robert Margolies, Health and Social Services, Fiscal Estimate for AB 926 (1983 Session).

       The State suggests that we have effectively done just that. The cases it cites in support of that proposition do not support such a characterization, however; they rather reiterate the essential point that Wimmer controls the meaning of conviction in the repeater statutes. See, e.g., State v. Watson, 2002 WI App 247, ¶ 11, 257 Wis. 2d 679, 653 N.W.2d 520; see also State v. Wimmer, 152 Wis. 2d 654, 664, 449 N.W.2d 621 (Ct. App. 1989).


author: PETERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Maurice S. Ewing, Defendant-Appellant.

    Court of Appeals

      No. 2004AP2942-CR.

      Submitted on briefs June 27, 2005.

      Decided August 16, 2005.

    2005 WI App 206
    (Also reported in 704 N.W.2d 405.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of David R. Karpe, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general and William C. Wolford, assistant attorney general.

      Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 11-11-05.

   PETERSON, J.

¶ 1. Maurice Ewing appeals a judgment convicting him of armed robbery while masked and three counts of false imprisonment, as well as an order denying his motion for postconviction relief. Ewing argues his trial counsel was ineffective because he failed to object to the State's impermissible references to his silence. We disagree and affirm the judgment and order.

BACKGROUND

¶ 2. At approximately 10:30 p.m. on May 5, 2003, two masked men with guns robbed a McDonald's restaurant on Fish Hatchery Road in Fitchburg. A McDonald's employee identified Ewing, who was a former employee, as one of the robbers based on his voice and eyelashes.

¶ 3. On May 6, Ewing went to the restaurant's corporate offices. When he was there, he spoke with Todd Stetzer, a detective with the Fitchburg Police Department. Ewing told Stetzer that he had recently been living with various friends. However, he had just obtained an apartment on Monterey, but did not know the apartment number. Ewing stated that on May 5 he had worked at the DeForest McDonald's, then spent time with his children, dropping them off at their mother's house between 8:30 and 9 p.m. After that, he was "kicking it" with some friends. Ewing was not able to give Stetzer times or locations, but stated he had been at Clarissa's house and Sarah's house. He also indicated that his brother was with him.

¶ 4. On May 7, Ewing was arrested. After he was advised of his rights, Ewing again spoke to Stetzer about his whereabouts on May 5, essentially giving the same information that he had on May 6. Ewing pled not guilty and a jury trial commenced on October 30, 2003.

¶ 5. Ewing did not testify at trial. He presented three witnesses to support his alibi that he was moving furniture to his new apartment at the time of the robbery. Jamael Ewing testified he was helping Ewing move items to Ewing's new apartment on Monterey from 10 p.m. until after 11 p.m. Shannon Wilson, the mother of Ewing's children, testified that Ewing left her house around 9 p.m., picked up Jamael, and then returned to her house to pick up his belongings. She stated he took three loads of items to his new apartment, departing from her house the final time around 11 p.m. Calvin Ewing testified that about 9:30 p.m., Ewing and Jamael were moving items from Wilson's house into the apartment on Monterey that Calvin, Jamael, and Ewing's father shared.

¶ 6. The jury found Ewing guilty on all four counts. Ewing moved for postconviction relief, claiming ineffective assistance of counsel. Ewing argued trial counsel should have objected to certain testimony by Stetzer and the State's closing argument as impermissible comments on his silence. At trial, the prosecutor asked Stetzer, "[Ewing] didn't tell you he was moving that night, is that correct?" Stetzer answered, "Absolutely not." On rebuttal, the prosecutor asked Stetzer, "In fact, when you talked to Mr. Ewing, did he say anything about moving furniture that night at all?" Stetzer answered, "No." During the State's closing argument, the prosecutor stated, "When [Stetzer] talks to the defendant, the defendant doesn't say, no last night I was moving." The prosecutor also said, "The next morning he couldn't remember he was moving."

¶ 7. After a Mochner hearing, the circuit court denied Ewing's motion. It concluded admission of the evidence did not violate Ewing's right to silence because he never invoked that right. It also rejected Ewing's argument that the evidence was improper impeachment on a collateral matter because the alibi evidence was the central issue in the case.

STANDARD OF REVIEW

¶ 8. The question of whether the State violated Ewing's right to remain silent involves the application of constitutional principles to undisputed facts, which is a question of law that we review independently. State v. Adams, 221 Wis. 2d 1, 6, 584 N.W.2d 695 (Ct. App. 1998). Additionally, our review of an ineffective assistance of counsel claim presents a mixed question of fact and law. State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999). We do not disturb the circuit court's factual findings unless they are clearly erroneous. Id. However, whether counsel's conduct amounts to ineffective assistance is a question of law that we review independently. Id.

DISCUSSION

¶ 9. Ewing argues the State impermissibly commented on his silence in violation of his constitutional rights. Because defense counsel did not object, we examine Ewing's argument in the context of his ineffective assistance of counsel claim. To establish ineffective assistance of counsel, a defendant must show both that trial counsel's performance was deficient and that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 697 (1984); State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985). Performance is deficient if it falls outside the range of professionally competent representation, measured by the objective standard of what a reasonably prudent attorney would do under the circumstances. Pitsch, 124 Wis. 2d at 636-37. Prejudice is demonstrated where, but for counsel's deficient performance, there was a reasonable probability of a different trial outcome. Erickson, 227 Wis. 2d at 773.

¶ 10. Here, whether Ewing's trial counsel was ineffective primarily hinges on whether the testimony Ewing complains of on appeal constitutes impermissible comments on his silence. Accordingly, we first turn to that threshold question.

¶ 11. Defendants have a constitutional right to remain silent. U.S. Const, amend. V; Miranda v. Arizona, 384 U.S. 436 (1966); Wis. Const. art. I, § 8(1). That right is violated if the State comments on the defendant's silence during a criminal trial. Griffin v. California, 380 U.S. 609, 614 (1965).

The test for determining if there has been an impermissible comment on a defendant's right to remain silent is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant's right to remain silent. The court must look at the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact on the jury.

State v. Nielsen, 2001 WI App 192, ¶ 32, 247 Wis. 2d 466, 634 N.W.2d 325 (citations omitted).

¶ 12. Ewing argues that when the State introduced evidence regarding his failure to tell police he was moving on the night of the robbery, it impermissi-bly commented on his silence. Ewing's argument rests on two faulty premises. First, it assumes that Ewing exercised his right to silence. However, Ewing provides no record citation to support that assertion. Ewing was interviewed twice by police, once before and once after his arrest. In both instances, he provided a purportedly complete account of his whereabouts the night of the robbery.

¶ 13. Second, Ewing's argument assumes the complained-of testimony involved his silence. While Ewing characterizes the testimony as comments on his non-statements or his failure to reveal his alibi, we are unpersuaded that the testimony amounted to a comment on his silence. Ewing provided alibi evidence in his interviews with police - that he was "kicking it" with friends, stopping at several friends' houses, at the time of the robbery. The information Ewing provided was inconsistent with the alibi witnesses he provided at trial, who testified that he was moving at the time of the robbery. When the prosecutor asked Stetzer whether Ewing stated he was moving the night of the robbery, the prosecutor was not eliciting comment on Ewing's silence or what Ewing did not say. Rather, the prosecutor was highlighting the inconsistency between what Ewing did say and what his alibi witnesses testified to at trial. Accordingly, we cannot conclude that the testimony "was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant's right to remain silent." See id.

¶ 14. The authority Ewing cites in support of his arguments is equally unpersuasive. Ewing cites State v. Feela, 101 Wis. 2d 249, 268, 304 N.W.2d 152 (Ct. App. 1981), for the proposition that the State may not question a defendant on his failure to reveal an alibi to police. However, because Ewing did not testify, the State did not question him at all. Further, Ewing did reveal an alibi to police, albeit a different one than he presented at trial. Accordingly, Feela is inapplicable. Similarly, Ewing quotes State v. Wulff, 200 Wis. 2d 318, 340-41, 546 N.W.2d 522 (Ct. App. 1996), rev'd on other grounds, 207 Wis. 2d 143, 557 N.W.2d 813 (1997): "The government may use a defendant's post-arrest silence to impeach his or her testimony in certain respects, but it may not argue that the defendant's silence was inconsistent with his claim of innocence." Again, Ewing did not testify, and therefore the State could not impeach his testimony. Nor could the State argue that Ewing's silence was inconsistent with his claim of innocence, because he never exercised his right to remain silent.

¶ 15. Ewing also quotes extensively from United States v. Hale, 422 U.S. 171 (1975), in support of his argument that a defendant is permitted to stop talking without giving police his entire story or to refuse to answer certain questions. However, Ewing purported to give police a full account of his whereabouts on the night of the robbery, and he did not refuse to answer any questions. Hale is therefore inapplicable here.

¶ 16. Alternatively, Ewing argues that if the testimony was not an impermissible comment on his silence, his trial counsel was still ineffective for failing to object. He contends that a witness's testimony cannot be impeached by the non-statement of another. However, Ewing's argument and supporting legal authority rests on the same faulty factual premise we rejected above: that Stetzer testified regarding Ewing's silence or non-statement. The prosecutor impeached the alibi witnesses with Ewing's statements, not his non-statements.

¶ 17. Ewing also relies on State v. Sonnenberg, 117 Wis. 2d 159, 344 N.W.2d 95 (1984). Sonnenberg held that certain extrinsic evidence, introduced to impeach the defendant's testimony on a collateral matter, was inadmissible. Id. at 174-75. However, Ewing did not testify. Further, we agree with the circuit court's conclusion that Ewing's whereabouts the night of the robbery was not a collateral matter, it was the central issue in the case.

¶ 18. Because Ewing fails to establish that the evidence was inadmissible, counsel was not deficient for failing to object. Accordingly, Ewing's ineffective assistance claim fails.

By the Court. — Judgment and order affirmed.

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

       Ewing does not argue that the State impermissibly commented on his choice to not testify in his own defense at trial. Accordingly, we are concerned only with Ewing's pretrial right to silence.

       Ewing's alternative argument begins by asserting the evidence was objectionable on due process grounds. However, his subsequent argument challenges admissibility as a matter of evidentiary, not constitutional, law.

       Ewing cites Hilton v. Hayes, 154 Wis. 27, 32, 141 N.W 1015, overruled on other grounds by Gelhaar v. State, 41 Wis. 2d 230, 241 n.1, 163 N.W.2d 609 (1969), and Reichhoff v. State, 76 Wis. 2d 375, 251 N.W.2d 470 (1977).