source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Michael J. Collins, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Michael J. Collins, Respondent.
    Supreme Court

      No. 03-2688-D.

      Decided February 12, 2004.

    2004 WI 9
    (Also reported in 674 N.W.2d 566.)
   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney Michael J. Collins and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12.

¶ 2. On October 13, 2003, the OLR filed a complaint in this court alleging eight separate counts of misconduct against Attorney Collins involving three separate client matters. Collins did not file an answer but instead, he and the OLR filed a stipulation in which Collins admitted the facts and misconduct as alleged in the OLR's complaint and agreed to the level of discipline the OLR sought in this disciplinary matter — a 60-day suspension of Collins' license to practice law in this state.

¶ 3. We approve the stipulation and adopt the stipulated facts and conclusions regarding Collins' eight counts of misconduct as alleged in the OLR's complaint. We determine that the seriousness of Attorney Collins' misconduct warrants suspension of his license to practice law for a period of 60 days.

¶ 4. Michael J. Collins was admitted to practice law in Wisconsin in 1977 and most recently he practiced in Madison. Collins has previously received two public reprimands for disciplinary violations.

¶ 5. The OLR's disciplinary complaint alleged that Collins had committed eight separate counts of misconduct. The alleged misconduct to which he now stipulates includes two counts of neglect, two trust account violations, two instances of failing to cooperate with the OLR investigations, one count of disobeying a court order, and one count of failure to keep a client reasonably informed about a hearing in her case. Collins admits to the facts as alleged in the OLR complaint. Briefly summarized, the allegations are these:

CLIENT R.S.

¶ 6. The OLR complaint alleged, and Collins now stipulates, that Collins represented R.S. in a divorce action in Rock county. R.S.'s wife, J.S.S. had been involved in an auto accident which damaged a 1988 station wagon. After that accident, J.S.S. began using the parties' 1995 van. J.S.S. subsequently received an insurance settlement check — in R.S.'s name — in the amount of $3300 for damage to the 1988 station wagon. J.S.S. received that settlement check before January 10, 1997, the date on which a temporary order hearing in the divorce action was held. As of that date, the monthly payments of $436.80 for the 1995 van for November and December 1996 had not been made to the lien holder on the van.

¶ 7. After the January 10, 1997, hearing, the circuit court ordered that the $3300 proceeds from the insurance settlement for the damage to the 1988 station wagon be placed in Collins' trust account; also, Collins was directed to contact the lien holder on the van and make arrangements to "catch up" on the past due payments and to find out if the lien holder would agree, after it received the $3300 cash payment from Collins' trust account, to reduce the principal balance and renegotiate the loan on the van so as to permit a lower monthly payment.

¶ 8. On January 18,1997, the attorney representing J.S.S. in the divorce action forwarded the $3300 insurance settlement check J.S.S. had received to Collins. Although Collins knew the circuit court's order required him to deposit that check into his trust account and to then make arrangements with the lien holder on the van, Collins failed to deposit the check into his trust account.

¶ 9. In addition, Collins failed to instruct his client, R.S., to come to his office to endorse that settlement check so that Collins could then deposit it in his trust account and make the van payments.

¶ 10. On April 9, 1997, R.S. received a Notice of Right to Cure Default from the lien holder regarding the van. R.S. faxed that document to Collins and called him but Collins did not return the call. During the latter half of April 1997, R.S. made several additional unsuccessful attempts to contact Collins. R.S. was finally able to reach Collins on April 30, 1997.

¶ 11. On May 9,1997, R.S. learned that he needed to endorse the settlement check and he then did so on that date.

¶ 12. Subsequently, in November of 1999, R.S. filed a grievance against Collins with the BAPR (OLR's predecessor agency). BAPR and Collins corresponded regarding that grievance throughout February of 2000.

¶ 13. On April 27, 2000, BAPR staff wrote to Collins asking for additional information and a response no later than May 11, 2000. Collins, however, failed to respond.

¶ 14. On May 16, 2000, BAPR staff again wrote to Collins and asked for his response; again, he did not respond.

¶ 15. BAPR staff subsequently referred the grievance investigation to its district investigative committee. While that investigation was pending, this state's lawyer regulation system was restructured and the disciplinary agency was renamed the Office of Lawyer Regulation (OLR).

¶ 16. On February 28, 2001, Collins met with the OLR's district investigative committee and was asked to provide additional information regarding his communication with the attorney who had represented J.S.S. in the divorce action. Collins also promised to provide additional information regarding his failure to respond to the BAPR staff investigative letters. Collins agreed that he would supply all the information no later than March 7, 2001. Collins, however, failed to provide any further information to the investigative committee regarding R.S.'s grievance.

¶ 17. This course of conduct resulted in Counts One through Five as alleged in the OLR's complaint. Those counts of misconduct to which Collins now stipulates are:

A. Count One. By failing to deposit the insurance settlement check into his trust account, Collins failed to hold in trust, property of clients or third persons in his possession in connection with a representation or when acting in a fiduciary capacity in violation of SCR 20:1.15(a).
B. Count Two. By failing to promptly deliver the funds to the lien holder, despite the court's temporary order, Collins failed to, upon receiving funds or other property in which a client or third person has an interest, promptly notify the client or third person in writing, and failed to promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive, in violation of SCR 20:1.15(b).
C. Count Three. By taking four months to deposit the insurance settlement check instead of timely depositing the money into his trust account and by failing during that time to make past due payments to his client's lien holder, Collins failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
D. Count Four. By failing to follow the court's temporary order requiring him to deposit an insurance settlement check into his trust account, and make arrangements with the parties' bank to catch up on any past due payments, Collins knowingly disobeyed an obligation under the rules of a tribunal, in violation of SCR 20:3.4(c).
E. Count Five. By failing to respond to two requests for information from the BAPR staff and by failing to provide information to the district committee as agreed, Collins failed to cooperate with the investigative committee; Collins failed to cooperate with the OLR in the investigation, prosecution and disposition of a grievance; and by failing to fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct, Collins engaged in professional misconduct, in violation of SCR 21:03(4) (1998), SCR 22.07(3) (1998), SCR 22.04(1), SCR 21.15(4), and SCR 22.03(2) (October 1, 2000).

CLIENT M.T.

¶ 18. The OLR complaint further alleged, and Collins now stipulates, that in May 1998, M.T. retained Collins as counsel in a divorce action then pending in the Dane County Circuit Court. Collins was the fourth attorney M.T. had retained in that divorce action.

¶ 19. Opposing counsel in the divorce action subsequently filed a motion seeking a firm date and a time for completion of a property exchange between M.T. and her former husband. On October 29, 1998, the circuit court scheduled a hearing on that motion for Monday, November 9, 1998. Collins, however, intentionally did not timely inform his client, M.T., of that scheduled hearing because he believed that her presence at that hearing might be disruptive. It was not until Friday, November 6, 1998, that Collins mailed M.T. notice of the hearing then scheduled for the next Monday; he knew that that notice would probably not reach M.T. in time for her to arrange to be present at the hearing the following Monday.

¶ 20. M.T. in fact did not appear at that November 9, 1998, hearing. Because she was not present at that hearing, Collins did not raise certain issues she wanted addressed. In M.T.'s absence, the circuit court set a date and time for M.T.'s husband to retrieve his personal property from M.T.'s home.

¶ 21. This course of conduct as alleged in the OLR's complaint resulted in Count Six to which Collins now stipulates:

A. Count Six. By deliberately not informing a client of a post-divorce hearing Collins 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).

CLIENT N.M.

¶ 22. The OLR alleged, and Collins now stipulates, that he was appointed to act as guardian of 16-year-old N.M. in Sauk County. Upon N.M.'s 18th birthday in November 1999, Collins was required to file his final guardian report detailing the funds collected and bills paid in the matter. When Collins' final report was overdue, the circuit court scheduled a hearing for December 1999. Collins failed to appear at that hearing even though he had notice of it.

¶ 23. By early 2000 when Collins still had not filed his final report regarding N.M.'s guardianship, the circuit court scheduled another hearing; again, Collins failed to appear.

¶ 24. On April 4, 2000, the circuit court sent Collins another letter. \Wien his final report in the N.M. guardianship still had not been filed by May 3, 2000, the circuit court reported Collins' neglect of his duties as guardian in N.M.'s case to BAPR. Collins finally filed his report in late May of 2000.

¶ 25. On May 25, 2000, a BAPR investigator contacted Collins and asked him to respond to this grievance by June 14, 2000. Collins did not respond by that deadline.

¶ 26. BAPR staff then sent Collins a follow-up letter at the new address he had provided; Collins was given a new deadline of July 3, 2000, to respond to the grievance concerning the N.M. guardianship. Collins did not respond until August 2, 2000.

¶ 27. This course of conduct as alleged in the OLR's complaint resulted in Counts Seven and Eight to which Collins now stipulates.

A. Count Seven. By failing to timely file a guardianship report and by failing to attend two hearings, Collins failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
B. Count Eight. By failing to timely respond to requests for information by the BAPR, Collins failed to cooperate with the board and the administrator in the investigation, prosecution, and disposition of a grievance; and failed to fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct in violation of SCR 21.03(4) (1998) and SCR 22.07(2) (1998).

¶ 28. As noted, Collins has now stipulated to these eight counts of misconduct as alleged by the OLR in its complaint. He admits the facts and the misconduct as alleged, and he agrees that a 60-day suspension of his license to practice law in this state is an appropriate sanction for that misconduct.

¶ 29. We approve the stipulation and determine that the seriousness of Attorney Collins' misconduct warrants the suspension of his license to practice law for 60 days. We view Collins' actions as serious violations of the Rules of Professional Conduct governing lawyers in this state. Accordingly,

¶ 30. IT IS ORDERED that the license of Michael J. Collins to practice law in Wisconsin is suspended for a period of 60 days, effective March 18, 2004.

¶ 31. IT IS FURTHER ORDERED that Michael J. Collins comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process was substantially restructured. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed from the Board of Attorneys Professional Responsibility (BAPR) to the Office of Lawyer Regulation and the supreme court rules applicable to the lawyer regulation were also revised in part., Some of the conduct underlying this case arose prior to October 1, 2000. However, the complainant in this case will be referred to as the OLR. All references to supreme court rules will be to the current version of the supreme court rules unless otherwise noted.

       In June 1989 Collins consented to a public reprimand for his misconduct in failing to timely file answers to an opposing party's interrogatories or otherwise pursue his client's legal action, neglecting a legal matter, stating to his client that the interrogatories had been answered when Collins had not done so, misrepresenting the status of the lawsuit to his client, and signing, though not negotiating, a settlement agreement, failing to cooperate with the BAPR investigation and neglecting a legal matter entrusted to him.
      In January 1995 Collins again consented to a public reprimand for his misconduct in failing to promptly inform his client about developments in the client's case and for failing to timely pursue an appeal or motion for reconsideration on his client's behalf.


author: VERGERONT, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Charles Chvala, Defendant-Appellant.
    Court of Appeals

      03-0746-CR.

      Submitted on briefs October 29, 2003.

      Decided November 13, 2003.

    2003 WI App 257
    (Also reported in 673 N.W.2d 401.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of James A. Olson, John C. Carlson, Jr. and Dixon R. Gahnz, Lawton & Cates, S.C., Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jennifer E. Nashold and Barbara L. Oswald, asst, attorney generals, and Peggy A. Lautenschlager, attorney general.
    Before Vergeront, Lundsten and Higginbotham, JJ.
   VERGERONT, J.

¶ 1. The criminal complaint in this action charges Charles Chvala, a senator in the Wisconsin Legislature, with extortion, misconduct in public office, and violations of campaign finance statutes. The issue on appeal is whether, as Chvala contends, Wis. Stat. § 757.13 (2001-02) prohibits the trial court from scheduling the trial in this case before the last general business floor session ends on March 11, 2004. Section 757.13 provides:

Continuances; legislative privilege. When a witness, party or an attorney for any party to any action or proceeding in any court or any commission, is a member of the Wisconsin legislature, in session, that fact is sufficient cause for the adjournment or continuance of the action or proceeding, and the adjournment or continuance shall be granted without the imposition of terms.

¶ 2. We conclude that Wis. Stat. § 757.13 violates the doctrine of separation of powers if it is construed to mandate the court to grant Chvala's request that the trial not be scheduled until after March 11, 2004. We therefore construe the statute to direct courts to consider, in the sound exercise of their discretion, that a witness, party, or party's attorney is a member of the legislature in session when such persons request a continuance or adjournment for that reason. Because the trial court correctly construed § 757.13 in denying Chvala's request that the trial be scheduled after March 11, 2004, we affirm the trial court's order.

BACKGROUND

¶ 3. The complaint in this action was filed on October 17, 2002. On February 4, 2003, the trial court denied Chvala's motion to dismiss nineteen counts in the complaint and granted his motion to dismiss one.

¶ 4. At the scheduling conference on February 28, 2003, Chvala through counsel advised the court that it was his position that Wis. Stat. § 757.13 controlled the scheduling of the trial. He informed the court that the legislature would not adjourn until March 11, 2004, and requested that the trial be scheduled after that date. The court denied his request. The court ruled that there was a substantial public interest in resolving the charges as soon as could be accomplished consistent with adequate preparation and procedural fairness, that in scheduling the trial it would give reasonable and appropriate consideration to the legislature's schedule as well as other matters of concern to the parties, but that § 757.13 "should not and will not control the trial scheduling." The court stated it did not intend to put the trial off until March 2004 unless "there's a very, very strong reason offered to do that."

¶ 5. A discussion ensued on possible trial dates, with the prosecutor arguing for an August 2003 date and Chvala's counsel arguing that the complexity of the case and his calendar necessitated a date no sooner than November 2003. The court concluded it was feasible for the case to be ready to be tried by October 6, 2003, and, if jury selection began on that date, the trial would not conflict with a scheduled floor period in the legislature until October 21. Since that floor period was scheduled to last only three days, the court reasoned, if the trial had not concluded by October 20, it could resume after October 23. The court noted the next floor session was not scheduled until November 4 to November 13.

¶ 6. On April 11, 2003, we granted leave to appeal Chvala's challenge to the trial court's ruling on Wis. Stat. § 757.13. Although we initially established an expedited briefing schedule with the intention of resolving this appeal in advance of the October trial date, we granted extensions to both parties at their requests. On July 7, 2003, Chvala moved the trial court to vacate the October 6, 2003 trial date because this appeal was pending, as well as the appeal in case no. 03-0442-CR. See supra note 2. In a letter to the parties, the court indicated that it would remove the October 6, 2003 trial date from the calendar because of the pending appellate proceedings.

DISCUSSION

¶ 7. On appeal, Chvala contends the plain language of Wis. Stat. § 757.13 requires the court to continue this trial at Chvala's request as long as the legislature is in "session." The proper construction of "session," according to Chvala, is the entire time period between the first day of the biennial session to the last day of the last general business floor period. For the 2003-04 biennial session, this time period would be from January 6, 2003, through March 11, 2004. 2003 Senate Joint Resolution 1. The State responds that § 757.13 does not eliminate a trial court's discretion whether to grant a continuance, and, if it were construed to do so, it would violate the separation of powers doctrine. Alternatively, the State contends, the term "session" encompasses only the floor periods and special and extraordinary sessions.

¶ 8. The issue of the proper interpretation of Wis. Stat. § 757.13 presents a question of law, which we review de novo. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997). The purpose of statutory interpretation is to discern the intent of the legislature. Id. at 406. To do so, we first consider the language of the statute, and if that unambiguously sets forth the legislative intent, we apply that language to the case at hand and do not look beyond the statutory language to ascertain its meaning. Id. A statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. Id. When there are two reasonable constructions of a statute and one would render the statute unconstitutional, we select the construction that results in constitutionality. American Family Mut. Ins. Co. v. DOR, 222 Wis. 2d 650, 667, 586 N.W.2d 872 (1998).

¶ 9. Whether a statute violates the doctrine of separation of powers also presents a question of law. Barland v. Eau Claire County, 216 Wis. 2d 560, 572, 575 N.W.2d 691 (1998). The doctrine of separation of powers, while not explicitly set forth in the Wisconsin Constitution, is implicit in the division of governmental powers among the judicial, legislative, and executive branches. State ex rel. Friedrich v. Dane County Cir. Ct., 192 Wis. 2d 1, 13, 531 N.W.2d 32 (1995). "The Wisconsin constitution creates three separate coordinate branches of government, no branch subordinate to the other, no branch to arrogate to itself control over the other except as is provided by the constitution, and no branch to exercise the power committed by the constitution to another." State v. Holmes, 106 Wis. 2d 31, 42, 315 N.W.2d 703 (1982). Each branch has a core zone of exclusive authority into which the other branches may not intrude. Friedrich, 192 Wis. 2d at 13. In these core areas, any exercise of authority by another branch of government is unconstitutional. Borland, 216 Wis. 2d at 573.

¶ 10. However, the majority of governmental powers lie within areas of shared authority, where the powers of the branches overlap. Id. In these areas of shared powers, one branch of government may exercise power conferred on another only to the extent that does not unduly burden or substantially interfere with the other branch's exercise of power. Id.

¶ 11. Beginning with the language of Wis. Stat. § 757.13, Chvala contends it unambiguously requires that, if a party is "a member of the legislature, in session" the court must grant a continuance or adjournment. He reasons that the common meaning of "sufficient" is "as much as is needed," see American Heritage Dictionary of the English Language 1730 (4th ed. 2000), and therefore membership in the legislature in session is all that is necessary for a continuance or adjournment. He also points out that the concluding phrase uses "shall" — "adjournment or continuance shall be granted without the imposition of terms" — and "shall" is most commonly used to require an act.

¶ 12. The State offers alternative constructions for these words and phrases. It points out that Wis. Stat. § 757.13 does not expressly state that a court must grant an adjournment or continuance if a witness, party, or party's attorney is a member of the legislature in session. According to the State, "sufficient cause" simply means that a court in the exercise of its discretion may grant an adjournment or continuance solely for this reason. The State also argues that the concluding phrase does not say that an adjournment or continuance "shall be granted," but that it "shall be granted without the imposition of terms," meaning that if an adjournment or continuance is granted, the court may not impose costs.

¶ 13. We conclude the construction Chvala advances is a reasonable one. We put aside for the moment the question whether it is the only reasonable construction, because, according to the State, if the statute is construed as Chvala urges, it violates the separation of powers doctrine. We therefore turn to that issue.

¶ 14. In determining whether a statute unconstitutionally infringes upon judicial power, this court must first consider whether the subject matter of the statute in question falls within the power constitutionally granted to the legislature. Friedrich, 192 Wis. 2d at 14. If it does, we must then inquire whether the subject matter of the statute also falls within the judiciary's constitutional grant of power. Id. at 14-15.

¶ 15. The State does not address the first step in the analysis — whether the subject matter of the statute falls within the power constitutionally, granted the legislature. Instead, it begins with the contention that the courts have inherent authority to manage and control their dockets and to grant continuances, and then argues that Wis. Stat. § 757.13 interferes with this authority if construed as Chvala urges. Apparently the State's position is that rules regarding continuances are exclusively within the constitutional powers of the judiciary. Chvala's position is that the legislature's authority to exercise its constitutional powers encompasses the authority to establish a privilege for legislators so that their ability to carry out the business of the legislature is not impeded. He views the subject matter of the statute as an area of shared powers, and argues that the statute does not unduly burden or substantially interfere with the judiciary in the exercise of its powers.

¶ 16. The parties have not brought to our attention any cases that discuss the constitutional power of the legislature in a context similar to this case, and we have discovered none. However, we are persuaded for two reasons that the subject matter of Wis. Stat. § 757.13 falls within the constitutional powers of the legislature.

¶ 17. First, the constitution vests the legislative power in the senate and assembly, Wis. Const, art § 1, and further provides:

Organization of legislature; quorum; compulsory attendance. Section 7. Each house shall be the judge of the elections, returns and qualifications of its own members; and a majority of each shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under such penalties as each house may provide.

Wis. Const, art. iy § 7. In our view, it follows from these constitutional provisions that the legislature has the authority to legislate in matters that affect its ability to carry out the business of the legislature. We conclude that continuances and adjournments for witnesses, parties, and parties' attorneys who are members of the legislature in session is a matter that affects the ability of the legislature to carry out its business.

¶ 18. Second, the legislature has the power to enact legislation for the general welfare. Friedrich, 192 Wis. 2d at 16. The legislature is therefore acting within its constitutional powers in enacting legislation that effectuates a public policy of maximizing the attendance of the legislature at legislative sessions.

¶ 19. Turning next to the constitutional grant of power to the judiciary, Chvala does not dispute that the matter of continuances and adjournments is within the constitutional authority of the judiciary, and we conclude it is. Courts have the inherent authority to ensure that "the court functions efficiently and effectively to provide the fair administration of justice." City of Sun Prairie v. Davis, 226 Wis. 2d 738, 749-50, 595 N.W.2d 635 (1999). A court's authority to grant or deny continuances and adjournments is critical to ensuring that it functions efficiently and fairly.

¶ 20. Because the matter of continuances and adjournments for witnesses, parties, and parties' attorneys who are members of the legislature in session is within the constitutional powers of both the legislature and the judiciary, we must next decide whether Wis. Stat. § 757.13, if construed as mandatory, unduly burdens the judiciary or substantially interferes with the constitutional exercise of its authority. We conclude that it does. In E.B. v. State, 111 Wis. 2d 175, 186, 330 N.W.2d 584 (1983), the court held that if a statute were construed to mandate a reversal for a court's failure to provide the jury written instructions on the substantive law, the statute would violate the separation of powers doctrine. After noting this was an area of shared powers, the court concluded that a mandatory construction would impermissibly circumscribe judicial power because it is the judiciary's function to determine on a case-by-case basis whether error is reversible. Id. This reasoning applies here.

¶ 21. As early as 1853, our supreme court said: "There is no doubt but motions for continuance . . . are addressed to the sound discretion of the court." Knox v. Arnold, 1 Wis. 71, 74 (1853). This principle has not changed. See Brezinski v. Barkholtz, 71 Wis. 2d 317, 320, 237 N.W.2d 919 (1976). Under Chvala's construction, a court has no discretion whether to deny a continuance or adjournment no matter how compelling the need for the case to proceed immediately and no matter what means of accommodation are available to minimize or avoid interference with legislative duties. This is a direct and significant interference with the judiciary's ability to exercise its inherent authority to decide, on the specific facts before it, whether the interests of efficiency and fairness will or will not be best served by a continuance or adjournment.

¶ 22. Our conclusion is consistent with the great majority of cases from other states in which courts have held that statutes mandating continuances during legislative sessions violate the separation of powers doctrine by interfering with the judiciary's exercise of its powers: see McConnell v. State, 302 S.W.2d 805, 808 (Ark. 1957); Thurmond v. Superior Court, 427 P.2d 985, 987-88 (Cal. 1967); A.B.C. Business Forms, Inc. v. Spaet, 201 So. 2d 890, 892 (Fla. 1967); Booze v. District Court, 365 P.2d 589, 592 (Okla. Crim. App. 1961); Lemoine v. Martineau, 342 A.2d 616, 620 (R.I. 1975); Williams v. Bordon's, Inc., 262 S.E.2d 881, 884 (S.C. 1980); Granai v. Witters, 194 A.2d 391, 393 (Vt. 1963). The only case brought to our attention that has reached a different result is Government Services Insurance Underwriters v. Jones, 368 S.W.2d 560, 561 (Tex. 1963), in which the court held that the Texas statute mandating a continuance if a party or party's attorney "will be or is in actual attendance on a Session of the [legislature]" did not violate the separation of powers provision in that state's constitution. However, in a later case the same court held that the statute could not be constitutionally applied where "the party opposing the continuance alleges that a substantial right will be defeated or abridged by delay"; in such cases the trial court had a duty to conduct a hearing on those allegations and to deny a continuance if the allegations were meritorious. Waites v. Sondock, 561 S.W.2d 772, 776 (Tex. 1977).

¶ 23. Chvala asserts that Wisconsin courts do not rely on decisions from other states to interpret the Wisconsin Constitution, and he asks that we not consider the above cases in reaching our decision. We recognize that none are binding, but there is no reason we may not consider how courts of other jurisdictions have decided the same or similar issues. We observe that the supreme court did just that in In re Grady, 118 Wis. 2d 767, 778-81 (1984).

¶ 24. Because we conclude that Wis. Stat. § 757.13 substantially interferes with the judiciary's exercise of its constitutional powers if it is construed to mandate the grant of a continuance or adjournment, we next consider whether there is a reasonable construction of the statute that would be constitutional. See American Family Mut. Ins. Co., 222 Wis. 2d at 667. We conclude that the statute may be reasonably construed to allow a court to exercise its discretion on whether to grant or deny a continuance or adjournment when a witness, party, or party's attorney is a member of the legislature in session. As the State has pointed out, the language that such statute is a "sufficient cause" does not expressly mandate that a continuance or adjournment be granted; and the addition of "without the imposition of terms" to the last phrase may be reasonably construed to mean that, if a continuance is granted, it shall be without the imposition of costs.

¶ 25. We therefore construe the statute to direct the courts to consider, in the sound exercise of their discretion, that a witness, party, or party's attorney is a member of the legislature in session when such person seeks a continuance or adjournment for that reason. In keeping with the recognition that the matter of continuances or adjournments for members of the legislature in session is encompassed within the constitutional powers of the legislature, and that legislators' attendance when the legislature is in session is critical to the ability of the legislature to carry out its constitutional powers, courts should carefully consider requests for continuances or adjournments; and courts should accommodate the schedule of the legislature consistent with the demands of fairness and efficiency in the particular case. We are satisfied that this construction of Wis. Stat. § 757.13 avoids substantial interference with the judiciary's authority, while recognizing the significant interests of the legislature that are also at stake in this area of shared powers.

¶ 26. Because we have construed Wis. Stat. § 757.13 to allow the court to exercise its discretion, it is unnecessary for us to construe the term "session." The specific nature and extent of the legislature's scheduled activities will be considered by the trial court when a continuance is requested.

¶ 27. In this case, the trial court ruled that Wis. Stat. § 757.13 "should not and will not control trial scheduling." We understand this phrase in the context of the court's oral and written comments to mean that the court concluded it was not mandated by the statute to grant Chvala's request, but, rather, had the authority to exercise its discretion in ruling on that request. This, as we have held, is the correct construction of § 757.13. The trial court's oral and written comments also show that it correctly understood that, in exercising its discretion, it was to carefully consider the legislature's schedule and accommodate it, consistent with the demands of fairness and efficiency in this case. Accordingly, we affirm the trial court's order denying Chvala's request for a continuance until after March 11, 2004.

By the Court. — Order affirmed.

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

       We granted Chvala's motion for leave to file an interlocutory appeal on four of those counts, and that appeal is pending before this court in case number 03-0442-CR.

       The court entered a written order summarizing its ruling as follows:
      The defendant has suggested that See. 757.13, Wis. Stats, is controlling with regard to the scheduling of trial of this matter and further requests that, upon this basis, trial should not be set earlier than March, 2004. The defendant has called the court's attention to this opinion at 36 O.A.G. 196 (1947) in which the Attorney General discusses the need to give primary consideration to the public interest of legislative duty as balanced against a legislator's private interest as a party or counsel in litigation. It is the determination of this court that there is a substantial public interest to be served by resolution of these charges as soon as can be done consistent with adequate preparation and procedural fairness. This court intends to give reasonable and appropriate consideration to legislative scheduling as well as all other matters of concern of the parties. It is the ruling of this court, however, that Sec. 757.13, Wis. Stats, should not and will not control trial scheduling.

       Although the trial court has taken the October 6, 2003 date off the calendar, the issue of whether Wis. Stat. § 757.13 requires the court to grant a continuance until after March 11, 2004, is not moot, because a resolution will have an effect on the rescheduling of the trial. See State ex rel. Olson v. Litscher, 2000 WI App 61, ¶ 3, 233 Wis. 2d 685, 608 N.W.2d 425 (an issue is moot when its resolution will have no practical effect on the underlying controversy).

       Wisconsin Const, art. VII (judicial); art. IV (legislative); and art. V (executive).

       The court observed that it had "consistently recognized that the legislature and the judiciary share the power to regulate practice and procedure in the judicial system." E.B. v. State, 111 Wis. 2d 175, 181, 330 N.W.2d 584 (1983). The legislature's power to do so, the court explained, flows from its power to promote the public interest, which includes effectuating the public policy of maintaining a fair judicial system. Id. at 184-85 (quoting State v. Holmes, 106 Wis. 2d 31, 43-44, 46, 315 N.W.2d 703 (1982)).

       Chvala refers us to 36 Op. Att'y Gen. 196 (1947) in which the attorney general opined that Wis. Stat. § 757.13 mandates a continuance regardless of time limits in other statutes. Attorney general opinions, while not binding on a court, may be persuasive authority. State v. Longcore, 2001 WI App 15, ¶ 9 n.5, 240 Wis. 2d 429, 623 N.W.2d 201. However, 36 Op. Att'y Gen. 196 does not address the question whether that construction of the statute violates the doctrine of separation of powers. We therefore do not view it as helpful in resolving the issues presented in this case.


author: SCHUDSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Timothy M. Ziebart, Defendant-Appellant.

    Court of Appeals

      No. 03-0795.

      Oral argument October 7, 2003.

      Decided November 18, 2003.

    2003 WI App 258
    (Also reported in 673 N.W.2d 369.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert R. Henak of Henak Law Office, S.C., of Milwaukee. There was oral argument by Robert R. Henak.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Alan Lee, assistant attorney general. There was oral argument by Alan Lee.

    Before Wedemeyer, PJ., Schudson and Curley, JJ.

       Petition to review denied 2-24-04.

   SCHUDSON, J.

¶ 1. Timothy M. Ziehart appeals from the circuit court order partially granting and partially denying his motion for postconviction relief, following his conviction for robbery, kidnapping, impersonating a peace officer, intimidating a victim, and two counts of second-degree sexual assault, all as a habitual criminal. He argues, under State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982), that trial counsel was ineffective for failing to object to what he terms the trial court's "substantially overbroad Whitty instruction .. . advis[ing] the jury that it could use evidence of [his] prior bad acts as evidence of non-consent," and that postconviction counsel was ineffective for failing to raise that argument. Ziebart also argues that the circuit court erred in denying his ineffective-assistance-of-counsel claims without holding an evidentiary hearing, and in denying his request for postconviction discovery.

¶ 2. We conclude that Alsteen's limitation of other-acts evidence to prove non-consent is not absolute and, in this case, would not have precluded the court's jury instruction. Therefore, because an objection to the other-acts jury instruction would properly have been overruled, neither trial counsel nor postconviction counsel was ineffective. We also reject Ziebart's challenge to the circuit court's denial of postconviction discovery. Accordingly, we affirm.

I. BACKGROUND

¶ 3. At Ziebart's 1998 jury trial, Mary S. testified that on the evening of August 23, 1997, after spending the day engaging in prostitution, she was coming down from a cocaine high when she and her girlfriend had an altercation with some unknown individuals on National Avenue in Milwaukee. At just that moment, a stranger, later identified as Ziebart, drove up and asked Mary if she needed a ride. She told Ziebart that she "was not dating," but that she could use a ride. Ziebart agreed stating, "I can give a beautiful lady a ride home."

¶ 4. Mary testified that she entered Ziebart's car and offered to pay for the ride. Ziebart declined her offer, drove to a service station, offered to buy Mary a soda, and went inside. When he returned, he stuffed something between the seats. As they neared her home, Mary asked Ziebart to pull over and let her out, but Ziebart reached across her and locked the passenger door. He grabbed Mary's wrist and threatened to kill her if she refused to follow his orders. Ziebart then parked on a secluded street and told Mary to take off her pants and shoes. He removed a box of condoms from between the seats, told Mary he did not want to catch any diseases from a "crack whore," and had sexual intercourse with her. He then ordered her to "suck his fat dick," and continually berated her for being a "crack whore."

¶ 5. Mary testified that Ziebart then drove to a nearby park where she unlocked the door and tried to escape. Ziebart pursued her, tripped her, robbed her, and threatened to kill her. He told Mary he was a St. Francis Police Officer and that she should not call the police because he and his "police brothers" would "get her." He said that he and his fellow officers were "sick of crack whores on the street," and repeatedly told her not to contact police because they would not believe her. Ziebart then fled the scene and Mary screamed for help.

¶ 6. Neighborhood residents testified that they heard Mary's screams and called the police. Cudahy Police Officer Glen Haase testified that when he arrived in the vicinity of the park, he found Mary extremely upset and disheveled, her jeans unbuttoned and open at the waist. When Officer Haase tried to question Mary at the scene, she immediately responded, "He tried to kill me." After being taken to the hospital, Mary provided Officer Haase a detailed account of the events.

¶ 7. At trial, Mary testified that several days after the assault, she received a phone call from a man who said, "Hello, Mary? .. . This is fat dick." The police traced the call to Ziebart. Cudahy Police Detective Byron McManaman testified that Ziebart denied making the call, denied stopping at the service station, and denied assaulting Mary. After being confronted with the service station's videotape showing him there, however, Ziebart changed his story. He admitted having had intercourse with Mary but, he maintained, he paid Mary twenty dollars for what he considered consensual sex.

¶ 8. Ziebart did not testify, but his statements to the police were introduced at trial. To rebut Ziebart's claim of consent, the State called Daryl H., who testified that, several years earlier, Ziebart and others had abducted him, sexually assaulted and robbed him. He said that during the assault, Ziebart continually berated and threatened him, and claimed to he a vigilante police officer on a rampage to rid the streets of drug addicts.

¶ 9. The trial court instructed the jury:

Evidence has been received in this case regarding crimes committed by the defendant and conduct of the defendant for which the defendant is not now on trial. Specifically, evidence has been received that the defendant engaged in certain conduct against Daryl... and was convicted of the crimes of battery, false imprisonment, kidnapping and burglary as a result of that conduct. If you find that this conduct did occur, you should consider it only on the issues of the defendant's motive, intent, preparation or plan and on the issue of non-consent in this case. You may not consider this evidence to conclude that the defendant has a certain character or certain character trait and that the defendant acted in conformity with that trait or character with respect to the offenses charged in this case. The evidence was received on the issues of motive, that is, whether the defendant has a reason to desire the result of the crimes; intent, that is, whether the defendant acted with the state of mind that is required for these offenses; preparation or plan, that is[,] whether such conduct of the defendant is evidence of a design or scheme that is related to or encompasses the commission of the offenses now charged; and non-consent, that is, whether the victim freely consented or did not consent to the alleged acts of the defendant in this case.
You may consider this evidence only for the purposes I have described, giving it the weight you determine it deserves. It is not to be used to conclude that the defendant is a bad person and for that reason is guilty of the offenses charged.

(Emphases added.) The jury convicted Ziebart and the court sentenced him to 148 years in prison.

¶ 10. Ziebart appealed and this court affirmed. See State v. Ziebart, No. 00-1612-CR, unpublished slip op. (WI App May 22, 2001), review denied, 2001 WI 114, 246 Wis. 2d 174, 634 N.W.2d 320. We rejected Ziebart's arguments, one of which challenged the admission of Daryl's testimony. We concluded that the testimony "was offered for permissible purposes." Id., ¶ 14. We explained: "[Daryl's testimony] helped to prove the crimes against Mary by showing that Ziebart had employed a similar plan, and had acted with a similar motive and intent on a previous occasion. Thus, the evidence impeached Ziebart's consent defense." Id. (emphasis added).

¶ 11. Ziebart acknowledges that he "is bound by this Court's conclusion on his direct appeal that the other acts evidence was admissible to show plan, motive or intent," but he argues that "the trial court's theory, expressed in the 'limiting instruction,' that such evidence also is admissible to show non-consent is squarely at odds with Alsteen." Ziebart further contends that, although we concluded that "the evidence impeached Ziebart's consent defense," our decision "did not address whether the evidence was properly admissible on the issue of non-consent, and neither the defense nor the State argued admission of the evidence on that ground."

¶ 12. Thus, Ziebart asserts that "the issue is whether reversal is required because, even assuming that the 'other acts' evidence was properly admitted on the grounds found by this Court, the trial court's 'limiting' instruction permitted, and indeed encouraged, the jury to use that evidence for what [.Alsteen] has recognized to be an improper purpose, proof of non-consent."

II. DISCUSSION

A. Jury Instruction

¶ 13. Ziebart first offers his argument in the context of claiming that trial counsel was ineffective for failing to object to the instruction permitting the jury to consider Daryl's testimony on the issue of "whether the victim freely consented or did not consent to the alleged acts of the defendant in this case." We reject his argument.

¶ 14. The standards governing claims of ineffective assistance of counsel have been repeated many times and need not be detailed here. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). Suffice it to say, however, that a defendant claiming ineffective assistance must establish both deficient performance and prejudice, see Strickland, 466 U.S. at 687, and a claim predicated on a failure to challenge a correct trial court ruling cannot establish either. See State v. Wheat, 2002 WI App 153, ¶ 14, 256 Wis. 2d 270, 647 N.W.2d 441 (counsel's failure to present legal challenge is not deficient performance if challenge would have been rejected); State v. Jackson, 229 Wis. 2d 328, 344, 600 N.W.2d 39 (Ct. App. 1999) (counsel's failure to present legal challenge is not prejudicial if defendant cannot establish challenge would have succeeded).

¶ 15. Similarly, because a defendant claiming ineffective assistance of postconviction counsel must establish postconviction counsel's failure to challenge trial counsel's performance, no such claim can succeed if predicated upon trial counsel's failure to challenge a correct trial court ruling. See State ex rel. Flores v. State, 183 Wis. 2d 587, 618-20, 516 N.W.2d 362 (1994). Thus, to establish that postconviction or appellate counsel was ineffective, a defendant bears the burden of proving that trial counsel's performance was deficient and prejudicial. See State v. Sanchez, 201 Wis. 2d 219, 232-36, 548 N.W.2d 69 (1996).

¶ 16. A trial court has broad discretion in instructing a jury but must exercise that discretion in order to fully and fairly inform the jury of the applicable rules of law. State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996). Whether a jury instruction is appropriate, under the given facts of a case, is a legal issue subject to independent review. See State v. Pettit, 171 Wis. 2d 627, 638, 492 N.W.2d 633 (Ct. App. 1992). On review, the challenged words of jury instructions are not evaluated in isolation. Id. at 637. Rather, jury instructions "must be viewed in the context of the overall charge." Id. Relief is not warranted unless the court is "persuaded that the instructions, when viewed as a whole, misstated the law or misdirected the jury." Id. at 637-38. Whether a jury instruction violated a defendant's right to due process is a legal issue subject to de novo review. Id. at 639.

¶ 17. Whether trial counsel's performance was deficient and, if so, whether it was prejudicial are legal issues also subject to our de novo review. State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985). Here, because the trial court correctly instructed the jury, Ziebart's ineffective-assistance-of-counsel claims fail.

¶ 18. In our decision denying Ziebart's previous appeal, we observed that the State introduced Daryl's testimony "to rebut Ziebart's claim that Mary had consented to having sex with him." Ziebart, No. 00-1612-CR, unpublished slip op., ¶ 7. We explained:

As the supreme court recently reiterated, "If the state must prove an element of a crime, then evidence relevant to that element is admissible, even if the defendant does not dispute the element." State v. Hammer, 2000 Wl 92, ¶ 26. And here, of course, Ziebart, claiming consent, was disputing his intent to commit any crime. Thus, the State could use other acts evidence of Ziebart's assault of Daryl to help prove Ziebart's intent to commit the strikingly similar crimes against Mary.

(Emphasis added.)

¶ 19. Still, Ziebart argues that Alsteen "expressly held such evidence to be irrelevant to the issue of consent." After all, he asserts, the supreme court dedared: "Consent is unique to the individual. 'The fact that one woman was raped ... has no tendency to prove that another woman did not consent.'" Alsteen, 108 Wis. 2d at 730 (quoting Lovely v. United States, 169 F.2d 386, 390 (4th Cir. 1948)). The State responds, "Alsteen does not stand for the proposition that other acts evidence can never be probative of the issue of consent or that the other acts evidence is not probative of the issue of the victim's credibility." The State is correct.

¶ 20. Although, as the supreme court explained, consent, in the context of sexual conduct, "is unique to the individual," id., and although, therefore, the prior non-consent of one person to sexual contact may not be introduced solely to prove the non-consent of another person to sexual contact, the preclusion of such other-acts evidence is not absolute. Where, as here, the other-acts evidence of non-consent relates not only to sexual contact but also to a defendant's modus operandi encompassing conduct inextricably connected to the strikingly similar alleged criminal conduct at issue, the evidence of non-consent may be admissible to establish motive, intent, preparation, plan, and absence of mistake or accident under Wis. Stat. § 904.04(2).

¶ 21. In this case, the trial court recognized that, while the assaults of Daryl and Mary differed in some respects, they shared what the court termed "some strong similarities ... in terms of the person representing [himself to be] a police officer and the basic act of physical and sexual degradation." Noteworthy, also, was Ziebart's vigilante-like modus operandi; his determination to deal with "crack whores," in Mary's assault, and "drug addicts," in Daryl's.

¶ 22. In State v. Plaster, 424 N.W.2d 226 (Iowa 1988), the Iowa Supreme Court recognized this modus operandi qualification on what otherwise would be the preclusion of other-acts evidence of non-consent. Id. at 230-31. The defendant was convicted of sexually assaulting a woman in an incident "arising out of initially consensual sexual activity." Id. at 227. While agreeing to engage in some sex acts with the defendant, the victim did not consent to vigorous vaginal manipulation that, the defendant insisted, other women enjoyed. The two doctors who examined the victim corroborated her account "that 'she had been assaulted with a fist into the vagina,"' causing painful, vaginal lacerations. Id. at 228. To rebut the defendant's claim of consent, the prosecution introduced evidence of a similar assault occurring two years earlier. According to this earlier victim and her doctor, the defendant assaulted her in the same way, causing vaginal bruises and a laceration. Id.

¶ 23. The Iowa Supreme Court acknowledged Alsteen and other cases that "simply reason that consent is unique to the individual." Id. at 230. The Court explained, however, that evidence of modus operandi may be introduced to rebut a defendant's claim of consent by showing that he " 'has had a nonconsenting encounter with another person in this strikingly singular way.'" Id. at 231 (quoting Youngblood v. Sullivan, 628 P.2d 400, 402 (Or. Ct. App. 1981)).

¶ 24. We agree. Where, as here, a defense of consent is inextricably connected to a defendant's conduct surrounding and including sexual contact, and where other-acts evidence is probative of a modus operandi rebutting that defense, Alsteen does not preclude an instruction advising the jury that it may consider the evidence on the issue of whether an alleged victim consented to the defendant's conduct.

¶ 25. We also acknowledge that the authorities are divided on this issue. And we recognize that, in this case, the trial court could have accurately instructed the jury without using the words "consent" or "non-consent." Thus, we go on to explain why, even if we were troubled by a jury instruction that might seem inconsistent with Alsteen, we would conclude that any possible error was harmless.

¶ 26. Where the trial court incorrectly instructs the jury, this court must set aside the verdict unless that error was harmless; that is to say, unless there is no reasonable possibility that the error contributed to the conviction. State v. Neumann, 179 Wis. 2d 687, 703, 508 N.W.2d 54 (Ct. App. 1993); see also Wis. Stat. 805.18(2). In this inquiry, the State has the burden of establishing, beyond a reasonable doubt, that there is no reasonable possibility that the error contributed to the conviction. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). An error is harmless if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. State v. Harvey, 2002 WI 93, 46, 254 Wis. 2d 442, 647 N.W.2d 189 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). This presents a question of law we review de novo. State v. Harris, 199 Wis. 2d 227, 256-63, 544 N.W.2d 545 (1996). In determining whether an error is harmless, we weigh the effect of the trial courts error against the totality of the credible evidence supporting the verdict. Id. at 255.

¶ 27. Here, Ziebart could have no complaint if the trial court, instead of instructing the jury that Daryl's testimony could be considered to evaluate consent and non-consent, had simply advised that it could be considered to evaluate credibility. See State v. Parr, 182 Wis. 2d 349, 361, 513 N.W.2d 647 (Ct. App. 1994) (other-acts evidence was relevant because it "bore directly on the truthfulness of [the defendant's] and [the victim's] competing and conflicting versions of the event"). And here, consent/non-consent and credibility were virtually interchangeable. The issue simply was whether Mary's account, in her trial testimony, or Ziebart's account, presented to police, was true. That determination reduced to whether Mary consented to Ziebart's actions. Therefore, assuming that the trial court had not uttered the challenged "consent/non-consent" words, the jury, having been properly instructed to determine the credibility of witnesses, see Wis JI — Criminal 300, still would have evaluated Daryl's testimony as it bore on Mary's credibility and, perforce, on her declaration of non-consent.

¶ 28. Ziebart maintains that the State's evidence was weak, noting in particular that no witnesses observed grass or mud stains on Mary's shirt and alleging that Mary "refused to cooperate in a sexual assault examination." He fails, however, to acknowledge the ample evidence supporting Mary's account. As noted, Officer Haase testified that Mary was emotionally distraught and physically disheveled when he first came on the scene. Gail Meinzer, the emergency room nurse who first treated Mary, testified that Mary declined an evaluation at the Sexual Assault Treatment Center because she (Mary) believed that no evidence would be recovered because she had engaged in sex acts with other men earlier in the day. Meinzer also testified that Mary's pants were open at the waist and grass stained at the knees, and that her shirt was open with the buttons off. In addition, Ziebart's statements to police, which changed each time police caught him in a lie, supported many aspects of Mary's version. Thus, the State correctly argues, "[e]ven if part of the limiting instructions were incorrectly given, it is impossible to conclude that if the instruction had been given without the challenged language, the result of the trial would have been different."

¶ 29. Therefore, because the trial court's instruction was correct, and because any possible error in the instruction was harmless when "viewed in the context of the overall" jury instructions, Pettit, 171 Wis. 2d at 637, neither trial counsel nor postconviction counsel was ineffective for failing to challenge it.

B. Postconviction Discovery

¶ 30. Ziebart also argues that the trial court erred in denying his motion for postconviction discovery. In his postconviction motion, Ziebart sought an order requiring the State to disclose "the means by which [Mary's] appearance at trial was accomplished, whether she was either housed or held in custody by the [S]tate pending her testimony, and the circumstances of any such housing or incarceration." The motion alleged that an acquaintance of Mary told a defense investigator that he had helped the police locate her at a drug house and that she was in custody during the trial. Ziebart maintains that, because those circumstances might be consequential in providing "grounds on which to exclude or discredit [the victim's] statements and testimony," he was entitled to discover the details.

¶ 31. Denying Ziebart's motion, the postconviction court concluded that Ziebart had failed to make a sufficient showing to gain discovery. It explained:

In this instance, the defendant has not provided a strong showing of success. In support of his request, Ziebart offers a vague and nebulous assertion made by an acquaintance of the victim long after trial. No particulars are provided and no sworn statement from the acquaintance exists. Even if the court had been provided with a sworn statement, however, [the acquaintance's] statement (or belief) that the victim was in "some form of state custody" would be insufficient to demonstrate that postconviction discovery was warranted. No actual factual data is offered; rather, merely the belief of an acquaintance, or perhaps his repetition of something he had possibly heard at one time, is presented. It is an unsubstantiated statement, murky at best, completely insufficient to support a motion for postconviction discovery^]

¶ 32. A defendant has a right to postconviction discovery if the desired evidence is relevant to an issue of consequence. State v. O'Brien, 223 Wis. 2d 303, 321, 588 N.W.2d 8 (1999). Further, a defendant seeking such discovery must establish that the evidence probably would have changed the outcome of the trial. Id. "The mere possibility that an item of undisclosed information might have helped the defense" is not enough. Id. We will uphold a court's denial of postconviction discovery absent an erroneous exercise of discretion. Id. at 320.

¶ 33. A defendant is not automatically entitled to a hearing on a postconviction motion. State v. Bentley, 201 Wis. 2d 303, 313, 548 N.W.2d 50 (1996). If a defendant presents only conclusory allegations that fail to raise a question of fact, or if the record conclusively demonstrates that the defendant is not entitled to relief, the court may deny the motion on its face. Id. at 309-10. Whether a motion alleges facts warranting relief, thus entitling a defendant to a hearing, is a legal issue we review de novo. Id. at 310. If the motion fails to allege sufficient facts, the trial court has discretion to deny the postconviction motion without a hearing, id. at 310-11, and this court reviews that denial solely to determine whether the court erroneously exercised discretion, id. at 311.

¶ 34. Here, we see no erroneous exercise of discretion. Responding to Ziebart's motion, the State conceded its difficulty in producing Mary but represented that she was never held in state custody or coerced for her testimony. Ziebart offered nothing more than Mary's acquaintance's impression to suggest otherwise. Moreover, as Ziebart concedes in his brief to this court, "the [S]tate, like any party, may use a subpoena or material[-]witness order to coerce a witness to attend the trial and answer questions." Thus, given that the State could have lawfully held Mary in custody to gain her testimony, the details of any such custody could establish nothing more than the "mere possibility" that such information "might have helped the defense." See id.

By the Court. — Order affirmed.

       The order partially granting Ziebart's motion for postconviction relief vacated his conviction for impersonating a peace officer.

        See Whitty v. State, 34 Wis. 2d 278, 292, 149 N.W.2d 557 (1967).

       Not falling within any exception to the rule against hearsay, Zeibart's statements to the police would have been inadmissible had he attempted to introduce them. See Wis. Stat. §§ 908.01(3), 908.02, & 908.03; see also State v. Lass, 194 Wis. 2d 591, 605, 535 N.W.2d 904 (Ct. App. 1995) ("[A]nything of an exculpatory nature that Lass might have said to his fellow inmate at the jail would have been hearsay, see Rule 908.01(3), Stats., and not admissible if offered into evidence by him, see Rule 908.02, Stats."). Because, however, Ziebart's statements were offered by the State, they were "not hearsay." See Wis. Stat. § 908.01(4)(b)1.

       In fact, contrary to Ziebart's contention, the State addressed State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982), in its March 2, 1998 motion supporting the admission of the Whitty evidence. Indeed, the State acknowledged that:
      the mere fact of a prior non-consentual [sic] sexual incident in the absence of a factual context that makes its admission relevant, is not admissible to refute a consent defense, Alsteen, supra. However, where, as here, the prior and current offense share many features in common, the prior offense is highly relevant and [its probative value is] not [substantially] outweighed by the [danger of unfair] prejudice.
      Additionally, the State argued that the evidence was relevant to: "(1) the defendant's intent, motive and common plan/scheme to kidnap the victim and hold her to service against her will and sexually assault and rob her... because of her alleged drug involvement and alleged sexual misbehavior and (2) refute [the defendant's] consent defense."

       Wisconsin Stat. § 904.04(2) (1999-2000) provides:
      Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

       Ironically, in the instant case, an important difference between the two assaults — the gender of the victims — further supports our decision. Mary, a woman, was confronted by Ziebart who sexually assaulted her and, in vigilante fashion, claimed to be ridding the streets of "crack whores," and pretended to be a police officer. Evidence of Ziebart's strikingly similar attack on Daryl, a man, was highly probative. Indeed, the "uniqueness" of non-consent would seem to recede as Ziebart maintained his modus operandi regardless of the gender of his victims.

        See Sheri B. Ross, Yes or No to Consent ? Conforming Rule 404(B) to Society's New Understanding of Acquaintance Rape, 48 U. Miami L. Rev. 343, 366-67 (1993) ("Corroborative evidence both reduces the possibility that the victim is lying and increases the probability that the defendant committed the crime .... Under this standard, the defendant's prior conduct [of committing sexual assaults] says something about the victim's present conduct — that she is not lying.... This inference does not imply that simply because one woman refused, this woman also refused. [Rather,] [i]t is [the defendant's] prior conduct that makes it more likely that she[, the victim here,] did not consent to sexual intercourse."). But see State v. Mitchell, 633 N.W.2d 295, 299-300 (Iowa 2001) (concluding that use of other-acts evidence from another victim of child sexual abuse cannot be used to bolster the complainant's credibility and corroborate her testimony); accord State v. Glodgett, 749 A.2d 283, 288-89 (N.H. 2000).

       Wisconsin Stat. § 805.18(2) provides, as material here:
      Mistakes and omissions; harmless error. No judgment shall be reversed or set aside or new trial granted in any action or proceeding on the ground of... misdirection of the jury, or the improper admission of evidence ... unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial.

       Because Ziebart's challenge to the jury instructions carried us to the case law considering whether an instructional-error is harmless, and because the "test for harmless error” is "essentially consistent with the test for prejudice in an ineffective assistance of counsel claim," State v. Harvey, 2002 WI 93, ¶ 41, 254 Wis. 2d 442, 647 N.W.2d 189, we have analyzed his challenge, in part, under harmless-error standards. In doing so, however, we do not mean to ignore "a distinction in the burden of proof: ordinarily, the one who benefits from the error must prove harmlessness, but in an ineffective assistance of counsel claim, the defendant must prove prejudice." Id.


author: BROWN, J.

text:
    Charles F. Kozlik, Estate of Jacquelyn Kozlik and Jaden Kozlik, Plaintiffs, Estate of Phillip R. Leverance, by his personal representative, Diane L. Weis, Involuntary-Plaintiffs-Respondents, v. Gulf Insurance Company, Defendant-Appellant.
    Court of Appeals

      No. 03-0175.

      Submitted on briefs September 25, 2003.

      Decided November 19, 2003.

    2003 WI App 251
    (Also reported in 673 N.W.2d 343.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Nathan J. Bayer and Timothy F. Mentkowski of Crivello, Carlson & Mentkowski, S.C. of Milwaukee.
    On behalf of the involuntary plaintiff-respondent, the cause was submitted on the brief of James J. Gende II and Charles David Schmidt of Cannon & Dunphy, S.C. of Brookfield.
    Before Brown, Nettesheim and Snyder, JJ.
   BROWN, J.

¶ 1. Phillip R. Leverance was a repeat client of Enterprise Rent-a-Car who always signed up for personal accident insurance (PAI), which included benefits for accidental death. This insurance was actually handled by Gulf Insurance Company. Leverance was killed in an auto accident while driving an Enterprise rental car. He was drunk at the time. Gulf contended before the trial court and contends here that it should not have to pay the Estate of Phillip R. Leverance because of an exclusion in its policy stating that it will not pay when the renter was driving while intoxicated. But the trial court held, and we agree, that because Leverance did not, with regard to the rented in question, receive a copy of the policy or a summary outlining the provisions and limitations of the policy, Gulf may not assert the exclusion. We also agree with the trial court that the Estate was entitled to prejudgment interest on the strength of its offer to settle. We affirm.

¶ 2. The following facts are relevant to this appeal. On November 1, 1999, Gulf issued a PAI policy to Enterprise. Under this policy, Gulf agreed to provide accidental death insurance to Enterprise's renters. Pursuant to the PAI policy's "Benefits Schedule," Gulf provided Enterprise with the option of offering two levels of accidental death coverage to its insured renters, either $50,000 or $100,000. When a renter paid Enterprise the premium for the accidental death coverage, he or she was insured under the PAI policy only for the duration of the rental agreement under which he or she purchased that coverage. The PAI policy expressly required Enterprise to provide each renter with written notice of the terms and conditions of the PAI coverage, including the exclusions, at the commencement of each and every rental agreement:

There shall be delivered to each Insured Renter a statement summarizing the insurance protection to which he [or she] is entitled, to whom payable, and such limitations and requirements as may pertain to the insurance afforded hereunder.

Gulfs assistant vice president of claims summarized the reasoning behind this requirement: "[T]he consumer needs to be aware of what they pay for, the coverage they have elected to purchase." To fulfill the policy's notice requirement, Enterprise required its employees to provide a "ticket jacket" to each renter at the commencement of each and every rental agreement. Among other things, the ticket jacket summarizes the terms and conditions of the PAI coverage, including the exclusion for an accident that occurs while the renter is under the influence of alcohol. Gulfs assistant vice president of claims also explained that the company requires the summary to be delivered "[s]o that the customer understands that there are exceptions. They understand the benefits and the exclusions of the Personal Accident Insurance."

¶ 3. From December 18, 1999, until his death on December 16, 2000, Leverance rented cars from Enterprise on nine different occasions. These rentals were documented by nine separate rental agreements. Each rental agreement pertained to different cars and had a different contract number and a different rental period. All of Leverance's rental agreements included PAI coverage.

¶ 4. On November 30, 2000, Leverance went to an Enterprise office to rent a car. Enterprise did not provide Leverance with a copy of the rental agreement or the accompanying ticket jacket on that date. Enterprise did not prepare the rental agreement until after the office had closed for the day, which was approximately an hour and a half after Leverance left the office. Leverance did not sign the agreement. Instead, the Enterprise branch manager simply wrote "SOF" — an abbreviation for "signature on file" — on each of the lines where Leverance's signature or initials was required. According to the agreement, Leverance had paid $3 per day for $100,000 in PAI coverage.

¶ 5. On December 16, 2000, Leverance and his passenger, Jacquelyn Kozlik, were killed in an accident involving Leverance's Enterprise rental car. Leverance was under the influence of alcohol at the time of his death. In 2001, Leverance's Estate sued Gulf, seeking to recover the $100,000 PAI death benefit from Leverance's November 30 rental agreement. Gulf had denied coverage based on the "alcohol exclusion," which denied benefits for any accident that occurred while the insured was under the influence of alcohol or other intoxicants.

¶ 6. On March 15, 2002, the Estate served on Gulf an offer to settle its claim. In response, Gulf filed a motion in limine to preclude Kozlik's family members from testifying at trial and a motion to remove the Kozliks from the caption in this case. As Gulf pointed out, the only claims by the Kozliks were against Enterprise, and pursuant to both the court's order dismissing Enterprise on December 21, 2001, and the court's order approving the minor settlement of Jaden Kozlik on February 20, 2002, neither the Kozliks nor Enterprise remained in the case. The trial court granted both of Gulfs motions. Gulf rejected the Estate's offer and the claim proceeded to trial.

¶ 7. Following a bench trial, the court determined that Gulf could not rely upon the exclusion to deny coverage and awarded to the Estate the amount of the PAI death benefit. The court reasoned that Enterprise had breached its contractual duty to deliver to Leverance a summary of the terms and conditions of the November 30, 2000 rental agreement and, as a result, Gulf was not entitled to assert the alcohol exclusion. In addition, the court awarded to the Estate prejudgment interest pursuant to Wis. Stat. § 807.01 (2001-02). Gulf appeals.

¶ 8. We begin with the threshold issue of whether the Estate is entitled to the $100,000 PAI death benefit pursuant to Leverance's November 30, 2000 rental agreement. It is well established that a claim for benefits under an insurance policy gives rise to a shifting burden of proof. The claimant bears the initial burden to prove that his or her loss falls within the policy's broad grant of coverage. Glassner v. Detroit Fire & Marine Ins. Co., 23 Wis. 2d 532, 536, 127 N.W.2d 761 (1964). If the claimant meets this burden, the burden shifts to the insurer to prove that an exclusion precludes coverage for the loss. Id. Applying this standard to the instant case, it is undisputed that the Estate met its burden to prove that Leverance's death fell within the broad grant of the policy's PAI coverage. Hence, the question narrows to whether Gulf has proven that the alcohol exclusion precludes coverage.

¶ 9. The Estate argues that despite the policy's clear exclusion for alcohol-related accidents, Gulf failed to satisfy its burden because Enterprise did not put Leverance on notice of the exclusion by providing him with a summary of the policy's coverage and limitations. Gulf responds that the trial court erred in finding that Leverance did not receive notice of the exclusions in the PAI coverage pursuant to his November 30, 2000 rental agreement. In the alternative, Gulf argues that even if Leverance did not receive a copy of the policy or the summary of its terms and limitations, it is nevertheless entitled to rely on the alcohol exclusion.

¶ 10. We first address whether Leverance received notice of the alcohol exclusion. The issue of whether an insured has received notice of exclusions contained in his or her insurance coverage is an issue of fact. We will not overturn a trial court's findings of fact unless clearly erroneous. Wis. Stat. § 805.17(2).

¶ 11. At the conclusion of the trial in this case, the trial court found, among other things:

4. That Phillip Leverance was in Enterprise's office on November 30, 2000, when the Rental Agreement at issue was printed. However, Enterprise failed to deliver said agreement, along with a summary of the limitations of Gulfs Personal Accident Insurance, to Leverance on that date or any date thereafter.
5. That it was clear that Phillip Leverance never received a summary of the limitations of Gulfs Personal Accident Insurance policy for the November 30, 2000 Rental Agreement as required by the contract of insurance between Enterprise and Gulf.
8. That Gulfs actual policy of Personal Accident Insurance was never delivered to Phillip Leverance.

These findings are supported by overwhelming evidence in the trial court record. Enterprise's loss control manager and branch manager both testified that on November 30, 2000, Leverance went to an Enterprise office and rented a car. Enterprise's loss control manager further testified that there was a new rental contract opened on November 30 to document Leverance's rental. The loss control and branch managers additionally testified that despite the need to have a renter sign his or her rental agreement to verify that the renter has notice of the terms and conditions of the contract and applicable insurance, Leverance was not asked to, nor did he, sign the November 30, 2000 rental agreement. Indeed, both witnesses confirmed that Enterprise did not prepare the November 30, 2000 rental agreement until approximately an hour and a half after Leverance had left the office. Finally, both managers testified that Leverance did not receive a copy of the policy or ticket jacket on November 30 and neither of the witnesses had any knowledge of whether a copy of the policy was ever given to Leverance. Nothing in the record contradicts any of this evidence. We therefore conclude that the trial court correctly determined that Leverance did not have notice of the terms and conditions contained in the November 30 rental agreement.

¶ 12. Having established that Leverance did not receive any notice of the terms and conditions of the November 30 rental agreement, we now turn to the question of whether Gulf is nonetheless entitled to rely on the alcohol exclusion in the PAI coverage. We are not aware of any cases in Wisconsin that specifically speak to whether an insurer can rely on policy exclusions when it fails to inform the insured of the policy's coverage and limitations. We, therefore, turn to other jurisdictions for guidance.

¶ 13. When faced with this issue, other courts have held that an insurer may not deny coverage based on an exclusion in the policy if the insurer did not provide the insured with a copy of the policy or some other documentation of its terms. Wayne Chem., Inc. v. Columbus Agency Serv. Corp., 426 F. Supp. 316, 323-24 (N.D. Ind. 1977), aff'd as modified on other grounds, 567 F.2d 692 (7th Cir. 1977); Rucks v. Old Republic Life Ins. Co., 345 So. 2d 795, 797-98 (Fla. Dist. Ct. App. 1977); Breeding v. Mass. Indem. & Life Ins. Co., 633 S.W.2d 717, 718-20 (Ky. 1982); Gardner v. League Life Ins. Co., 210 N.W.2d 897, 898-99 (Mich. Ct. App. 1973); Farmers Ins. Exch. v. Call, 712 P.2d 231, 236-37 (Utah 1985); Gen. Motors Acceptance Corp. v. Martinez, 668 P.2d 498, 501-02 (Utah 1983); Safeco Ins. Co. v. Dairyland Mut. Ins. Co., 446 P.2d 568, 570 (Wash. 1968); Brown Mach. Works & Supply Co., Inc. v. Ins. Co. of N. Am., 659 So. 2d 51, 58 (Ala. 1995); Kippen v. Farm Bureau Mut. Ins. Co., 421 N.W.2d 483, 484-87 (N.D. 1988). See generally, Thomas M. Fleming, Annotation, Insurer's Duty, and Effect of its Failure, to Provide Insured or Payee with Copy of Policy or Other Adequate Documentation of its Terms, 78 A.L.R. 4th 9 (1990). We recognize that some of the holdings are based upon statutory provisions requiring delivery of the policy or a certificate of insurance to the insured. See, e.g., Brown Mach. Works & Supply, 659 So. 2d at 58 (concluding that an insurer may be estopped to deny coverage based on an exclusion in the policy where the insurer fails to comply with a statutory mandate that the insurer deliver a copy of the policy to the insured); Gen. Motors Acceptance Corp., 668 P.2d at 501 (determining that an exclusion in a policy was invalid where the insured was unaware of it and, contrary to a specific notification statute, was not provided with a copy of the policy stating its coverage and restrictions); Breeding, 633 S.W.2d at 718-19 (holding that insurer could not rely on an exclusion for alcohol-related accidents where it had failed to comply with the statutorily imposed duty to provide insureds with a certificate of insurance summarizing coverage and restrictions).

¶ 14. Other courts, however, have held that, in the absence of such a statute, public policy nevertheless requires notice to the insured of the essential terms of coverage. Utah appellate courts have consistently held that exclusions from coverage under an insurance policy, even if clear, are ineffective unless they are communicated to the insured in writing. In Farmers Insurance Exchange, 712 P.2d at 236-37, the Utah Supreme Court concluded that an automobile insurance policy provision excluding insurance coverage for injuries sustained by household members was invalid where a copy of the policy was never provided to the insured. The court reasoned, "public policy requires that persons purchasing such policies are entitled to be informed, in writing, of the essential terms of insurance contracts, especially exclusionary terms." Id. at 236. The Michigan Court of Appeals, in Gardner, stated that basic fairness requires that notice of insurance coverage be given to the benefactor of such insurance:

The equity conscience of this Court, having been aroused, finds that it is beyond question that the borrower subjected to eligibility requirements be given notice thereof. The fact that the present insurance scheme, with premiums being paid by the credit union, places each member borrower in the status of a third-party beneficiary and that each borrower under the group policy has no individual identity cannot change this basic tenet of fairness .... The injustice of informing a disabled borrower at the time the claim is filed that he has no insurance protection is obvious and the need for notice is beyond peradventure.

Gardner, 210 N.W.2d at 898. Citing to both Farmers Insurance Exchange and Gardner, the North Dakota Supreme Court concluded that an insurer has a duty to provide a copy of a policy or other documentation of the terms of coverage and, when it fails to do so, it may not rely upon policy defenses to preclude coverage. Kippen, 421 N.W.2d at 484-87.

¶ 15. We agree with these courts that it would be unjust to permit an insurance company to accept premiums and then deny liability based on an exclusion of which the insured was not aware because the insurance company had not informed him or her of the exclusion or given him or her the means to ascertain its existence. Purchasers of insurance policies, like the one at issue here, commonly rely on the assumption that they are fully covered by the insurance that they buy. See Farmers Ins. Exch., 712 P.2d at 236-37; Louisiana Maint. Servs., Inc. v. Certain Underwriters at Lloyd's of London, 616 So. 2d 1250, 1252-53 (La. 1993) (observing that "[njotice of any exclusionary provisions is essential because the insured will otherwise assume the desired coverage exists."). If an insured is not given a copy of the policy, he or she cannot take whatever action is appropriate to protect his or her interests nor can he or she ensure that the coverage, which he or she thinks has been contracted for, is actually provided. We therefore hold that an insurer may not deny coverage based on limitations or exclusions in a policy, even if clearly stated, where the insured was not otherwise informed of such provisions.

¶ 16. Gulf argues that because Leverance received notice of the coverage exclusions from at least one of his prior rental agreements, the law we have cited should not apply. We do not agree. As the trial court observed, each rental agreement constituted a separate and distinct contract. According to the terms of the PAI policy itself and the testimony of Gulfs vice president, the prior insurance was only valid during the period of the rental of the vehicle; once the vehicle was returned, the insurance policy was terminated and the renter had to then purchase new PAI coverage when renting again. Thus, while it is possible that Leverance may have been previously aware of the alcohol exclusion and may even have assumed that it also applied to the November 30 rental agreement, the fact remains that the November 30 agreement was not a renewal or continuation of the previous agreements; it was an independent contract — and although unlikely, it was possible that the terms of the insurance policy had changed.

¶ 17. Despite contractual language requiring Enterprise to provide Leverance with a summary of the policy's coverage provisions and limitations, Leverance never received a copy of the policy or the ticket jacket summarizing the policy's terms and conditions. As Gulfs assistant vice president of claims admitted, the company required delivery so that the insured would understand the benefits and exclusions of the policy. Because Enterprise chose not do so, Leverance had no opportunity to review the policy's terms and conditions and, consequently, no notice of the alcohol exclusion. Accordingly, we conclude that Gulf has failed to meet its burden that the alcohol exclusion precludes coverage and the trial court properly awarded the $100,000 in PAI benefits to the Estate.

¶ 18. We now turn to the second issue in this appeal — whether the Estate is entitled to prejudgment interest pursuant to Wis. Stat. § 807.01. Gulf argues that the Estate's offer of settlement was ambiguous because it referenced the Kozliks as well as the Estate and, consequently, Gulf has no duty to pay the interest award. We review the validity of a statutory settlement offer de novo. See Staehler v. Beuthin, 206 Wis. 2d 610, 624, 557 N.W.2d 487 (Ct. App. 1996).

¶ 19. Wisconsin Stat. § 807.01(4) provides in pertinent part:

If there is an offer of settlement by a party under this section which is not accepted and the party recovers a judgment which is greater than or equal to the amount specified in the offer of settlement, the party is entitled to interest at the annual rate of 12% on the amount recovered from the date of the offer of settlement until the amount is paid.

However, a settlement offer that is ambiguous or does not comply with § 807.01 is invalid. See Prosser v. Leuck, 225 Wis. 2d 126, 136-37, 592 N.W.2d 178 (1999). An offer is ambiguous if it is susceptible to more than one reasonable interpretation. Wausau Underwriters Ins. Co. v. Dane County, 142 Wis. 2d 315, 322, 417 N.W.2d 914 (Ct. App. 1987). However, an offer is not ambiguous simply because a party can "conjure up a remotely possible second interpretation." U.S. Fire Ins. Co. v. Ace Baking Co., 164 Wis. 2d 499, 503, 476 N.W.2d 280 (Ct. App. 1991) (citation omitted).

¶ 20. Due to the procedural posture of the case at the time of the offer, Gulf knew that the Kozliks were no longer a party to the action. The record establishes that at the time of the Estate's offer of settlement, Gulf had already settled with the Kozliks and, in fact, had filed a motion, which the trial court granted, to have the Kozliks' names removed from the caption. Hence, the Estate's offer was susceptible to only one reasonable interpretation — the offer of settlement was intended as an offer to settle only the Estate's claim. The inclusion of the Kozliks' names was merely a scrivener's error. We therefore reject Gulfs contentions that the settlement offer was ambiguous and conclude that the Estate is entitled to prejudgment interest awarded pursuant to Wis. Stat. § 807.01.

By the Court. — Judgment affirmed.

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

       We note that had the parties desired, they may have been able to prepare one rental agreement that would have subsumed all of the terms and conditions of the multiple, different rental agreements upon which Leverance's acceptance could have been evinced through his signature. See Hertz #1 Club, http://www.hertz.hr/en/club.htm (last visited Oct. 22, 2003) (program where the customer signs only a single contract for all car rentals for one year). Enterprise chose not to do so.