author: DIANE S. SYKES, J.

text:
    In re the Marriage of: Michael G. LeMere, Petitioner-Respondent, v. Marcia L. LeMere, Respondent-Appellant-Petitioner.
    Supreme Court

      No. 01-2204.

      Oral argument April 8, 2003.

    Decided June 27, 2003.

    2003 WI 67
    (Also reported in 663 N.W.2d 789.)

      For the respondent-appellant-petitioner there were briefs by James R. Sickel, Daniel J. Vande Loo, and Hinkfuss, Sickel & Petitjean, Green Bay, and oral argument by James R. Sickel.

    For the petitioner-respondent there was a brief by Lise Lotte Gammeltoft and Peterson, Berk & Cross, S.C., Green Bay, and oral argument by Lise Lotte Gammelt-oft.

   DIANE S. SYKES, J.

¶ 1. The issue in this divorce case is whether the circuit court erroneously exercised its discretion in ordering an unequal property division based upon one spouse's greater direct contribution to the creation and expansion of the family business enterprise.

¶ 2. Michael and Marcia LeMere were married for nearly 20 years. During their marriage, Michael established and oversaw the family business, MGL Fitness, Inc. Marcia worked two jobs before having children, and then dedicated herself to full-time child-rearing and care of the family home.

¶ 3. Michael filed for divorce in 2001. At trial, Michael asked the circuit court to divide the assets unequally to reflect his industriousness and extensive efforts in creating and expanding MGL Fitness. The circuit court divided the marital assets equally, except for MGL Fitness, the largest asset, which was divided unequally, 65-35 percent in favor of Michael. The court of appeals affirmed.

¶ 4. Property division in divorce is governed by Wis. Stat. § 767.255(3) (2001-2002), which establishes a presumption of equal division of marital property. The statute also provides that the circuit court may deviate from this presumption of equality, but only upon consideration of certain enumerated factors. Here, the circuit court ordered an unequal division of the largest asset in the marital estate upon consideration of only one statutory factor, neglecting entirely the other statutory factors. In so doing, the circuit court failed to apply the correct legal standard, which constitutes an erroneous exercise of discretion, requiring reversal and remand for reconsideration of the division of marital property.

I. FACTS AND PROCEDURAL HISTORY

¶ 5. Michael and Marcia LeMere married on June 13, 1981. At that time, neither party had any appreciable assets. Marcia was employed as a childcare worker until 1983. From 1983 until 1990, she held two jobs: working full-time as a dental office receptionist by day, and moonlighting part-time cleaning offices.

¶ 6. Michael worked for the post office when the couple married, but in 1983 he left his position there to become a firefighter. He was an avid weightlifter and started selling small fitness products out of a local gym in 1982. For the next several years he sold these products for two hours in the morning and three to four hours in the evening. After several years of good sales, he decided to establish MGL Fitness, Inc. He operated the business on his days off from the fire department.

¶ 7. Michael quit his firefighting position in 1992 to focus full-time on expanding MGL Fitness. During this expansion, MGL Fitness opened retail stores in Green Bay, Appleton, Wausau, and Duluth, Minnesota. Michael made all the business decisions for the company, such as product lines, expansion, and location. Marcia filled in only occasionally, on an "as needed" basis, and sometimes helped with local shows and events. The business was successful and several articles in Green Bay area publications recognized its unique growth.

¶ 8. Marcia quit her part-time job in 1989 prior to the birth of the couple's first child, and quit her full-time receptionist position following the birth of their second child in 1990. At that point, she decided not to return to work outside the home, but, rather, to stay at home full-time to raise the children. Michael encouraged that move for several reasons, among them the success of MGL Fitness, the expense of daycare, and the tax consequences of Marcia's additional income.

¶ 9. Michael drew an annual salary of $41,000 from MGL Fitness, but this was dwarfed by the company's profits. In the early years of retail operation, Michael left most of the profits in the business to serve as working capital and to reduce debt. Despite the growing success of MGL Fitness, the family lived frugally in a modest home in order to save for retirement, the children's education, and to pay off their own debt. Michael and Marcia each drove modest and dated vehicles. In the six years prior to the divorce, however, Michael's total earnings from the company averaged over $333,000 per year, and the family gradually began to spend more money.

¶ 10. In May of 2000, Michael filed for divorce in Brown County Circuit Court. On May, 17, 2001, the parties reached an agreement regarding custody of the children, division of certain assets, Marcia's earning capacity, and payment of attorney's fees. On July 2, 2001, the circuit court, the Honorable Mark A. Warpin-ski, entered judgment dividing the marital assets equally, except for MGL Fitness, which was divided unequally, 65-35 percent in favor of Michael. This resulted in a 54-46 percent overall division of the net marital estate in favor of Michael. The circuit court also ordered Michael to pay child support in the amount of $4,606 per month. Finally, the circuit court awarded maintenance to Marcia in the amount of $615 per month for eight years, a period which coincides with the youngest child's anticipated high school graduation.

¶ 11. The circuit court premised the 65-35 percent division of MGL Fitness on Michael's ingenuity and industriousness in creating and expanding the business, concluding that his effort in this regard constituted a substantial economic contribution to the marriage justifying the unequal division:

MGL Fitness is awarded to [Michael LeMere]. It was through his efforts that this business has prospered. There is nothing in this record to suggest that [Marcia.LeMere] contributed to the financial success of the business. [Marcia] did not offer any testimony that she played any part in the organization, running, or expansion of the business.
[Michael] asks that I unequally divide the property division to reflect the industriousness of [Michael] in increasing the value of the business. [Michael] relies on Parrett v. Parrett, 146 Wis. 2d 830 (Ct. App. 1988) in this regard. In Parrett, the [c]ourt unequally divided the husband's interest in a business that was awarded to him. The Trial Court relied on the economic circumstances of the parties (§ 767.255(3)(d) Wis. Stats.). There as here, that decision was based on the husband's industriousness and extensive efforts in creating a business enterprise. I find that [Michael's] efforts to start, maintain, and expand MGL Fitness from a small box operation to a multi-location, multi-million dollar business is a substantial economic contribution to the marriage justifying an unequal property division.
In making this finding, I am not ignoring the contributions that [Marcia] made to this marriage. I do not find her testimony credible with respect to how much she was required to do in [Michael's] absence. [Marcia] indicated that the children do not like being with their father for periods of placement. Yet she conceded that the girls preferred to he by themselves even when they are at home. Neither child is in counseling. Neither child is a problem in school. The parties took their children on family vacations as well. From all of this I conclude that [Michael] spent reasonable periods of time with his children as they were growing up. The tangible evidence suggests that the children have a normal relationship with their father and not an estranged one as portrayed by [Marcia].
The ratio for [the] division is problematic. To award 100% of the asset to [Michael] would completely ignore the fact that to some extent [Marcia's] homemaking played a part in [Michael's] success. There is no scientific way to construct this percentage. It occurs to this Court that a significant deviation from the 50-50 division is warranted for the reasons stated above.... I find that a split of 65-35 in favor of [Michael] is reasonable.

¶ 12. Marcia appealed on the issue of the unequal property division. She also challenged the child support award as an improper deviation from the percentage guidelines, and the maintenance award as too low. The court of appeals affirmed, concluding that the circuit court did not erroneously exercise its discretion in ordering the 65-35 percent division of MGL Fitness. The court of appeals also rejected Marcia's challenge to the child support award, because her own request of $4,000 per month was itself a deviation from the percentage guidelines, and in any event, she was awarded more than she had requested. Finally, the court of appeals concluded that the circuit court did not erroneously exercise its discretion in awarding maintenance of $615 per month for eight years. We accepted review, and now reverse on the issue of the unequal property division.

II. STANDARD OF REVIEW

¶ 13. The division of property, calculation of child support, and determination of maintenance in divorce actions are decisions entrusted to the discretion of the circuit court, and are not disturbed on review unless there has been an erroneous exercise of discretion. King v. King, 224 Wis. 2d 235, 248-49, 590 N.W.2d 480 (1999); Cook v. Cook, 208 Wis. 2d 166, 171-72, 560 N.W.2d 246 (1997). "[A] discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination." Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981). A circuit court's discretionary decision is upheld as long as the court "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Long v. Long, 196 Wis. 2d 691, 695, 539 N.W.2d 462 (Ct. App. 1995).

¶ 14. Discretionary decisions must be arrived at by application of the proper legal standards; the failure to apply the correct legal standards is an erroneous exercise of discretion. King, 224 Wis. 2d at 251; Cook, 208 Wis. 2d at 171. "A circuit court erroneously exercises its discretion if it makes an error of law or neglects to base its decision upon facts in the record." King, 224 Wis. 2d at 248. We decide "any questions of law which may arise during our review of an exercise of discretion independently of the circuit court and court of appeals." Id.

III. ANALYSIS

¶ 15. The Divorce Reform Act of 1977 and its subsequent amendments govern Wisconsin divorces. The Act was a predecessor to the Wisconsin Marital Property Act, passed in 1984, and both laws are part of The Family Code. Wis. Stat. § 765.001(1). The broadly-stated general purpose of The Family Code is "to promote the stability and best interests of marriage and the family." Wis. Stat. § 765.001(2). As is more pertinent here, The Family Code's statement of legislative intent provides that "[i]t is the intent of the legislature to recognize the valuable contributions of both spouses during the marriage and at termination of the marriage by dissolution or death." Id.

¶ 16. Property division in divorce is governed by Wis. Stat. § 767.255, which establishes a presumption in favor of equal division of marital property. Wis. Stat. § 767.255(3). "[T]he legislatively prescribed 50 percent presumption in awarding property division is a rebut-table one." Jasper v. Jasper, 107 Wis. 2d 59, 68, 318 N.W.2d 792 (1982). A circuit court may deviate from the presumption of equal property division, but only after considering a lengthy and detailed list of statutory factors. Id.

¶ 17. The statutory list contains 12 enumerated factors, plus a catch-all, and is preceded by an explicit requirement that the circuit court consider all of the enumerated factors before altering the presumption of equal property division:

(3) The court shall presume that all property not described in sub. (2)(a) [gifts and inheritances] is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following:
(a) The length of the marriage.
(b) The property brought to the marriage by each party.
(c) Whether one of the parties has substantial assets not subject to division by the court.
(d) The contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services.
(e) The age and physical and emotional health of the parties.
(f) The contribution by one party to the education, training or increased earning power of the other.
(g) The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
(h) The desirability of awarding the family home or the right to five therein for a reasonable period to the party having physical placement for the greater period of time.
(i) The amount and duration of an order under s. 767.26 granting maintenance payments to either party, any order for periodic family support payments under s. 767.261 and whether the property division is in lieu of such payments.
(j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.
(k) The tax consequences to each party.
(l) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.
(m) Such other factors as the court may in each individual case determine to be relevant.

Wis. Stat. § 767.255(3) (emphasis added).

¶ 18. We have held that "[i]n enacting the current property division statute, the legislature abandoned any dower-type formula in favor of a fifty-fifty presumption, subject to certain exceptions." Bahr v. Bahr, 107 Wis. 2d 72, 81, 318 N.W.2d 391 (1982). "Part of the rationale in creating the presumption of equal property-division is that the homemaking partner has contributed services which have enabled the financially supporting partner to achieve his or her station in life, and in so doing the homemaking partner has lost ground in the job market." Jasper, 107 Wis. 2d at 68.

¶ 19. The presumption of equality in the division of the marital estate is based upon the status of marriage as a partnership:

We note that marriage is to be viewed as a partnership, and "in dividing property upon divorce, the contribution of a full-time homemaker may be considered greater than, or at least as great as, that of a working spouse. The fact that one party to the marriage worked outside the home while the other cared for the home and children has little bearing on the outcome of the property division if marriage is to be viewed as a 'partnership,' in which the parties contribute according to their respective abilities to the acquisition and preservation of marital assets."

Id. at 67 (quoting Perrenoud v. Perrenoud, 82 Wis. 2d 36, 49, 260 N.W.2d 658 (1978)). "[S]pouses are presumed to be equal contributors to the accumulated wealth of a marriage, regardless of whether their contributions are principally made inside or outside the home." Katzman v. State Ethics Board, 228 Wis. 2d 282, 297, 596 N.W.2d 861 (Ct. App. 1999).

¶ 20. A previous version of the statute provided that the circuit court may alter the presumptive equal division of property "after considering" the statutory factors. See Wis. Stat. § 247.255 (1977-78) ("The court shall presume that all other property except inherited property is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering... ") This language has been interpreted as requiring the circuit court to consider the statutory factors that are relevant to the case, but not necessarily all 12. Lutzke v. Lutzke, 122 Wis. 2d 24, 38, 361 N.W.2d 640 (1985)("[T]he assets of the marriage shall be allocated or distributed in accordance with the court's exercise of discretion after considering the pertinent and relevant factors."); Arneson v. Arneson, 120 Wis. 2d 236, 254, 355 N.W.2d 16 (Ct. App. 1984)(citing In re the Marriage of Lundberg, 107 Wis. 2d 1, 11-12, 318 N.W.2d 918 (1982)).

¶ 21. As noted above, however, the current version of the statute provides that the circuit court may alter the presumptive equal division of property "after considering all of the following," and this language is followed immediately by the enumeration of the factors in subsections (a)-(m). Wis. Stat. § 767.255(3) (emphasis added). The "all of the following" language was added in 1993.

¶ 22. The statute, therefore, does not permit a circuit court to deviate from the presumption of equal property division after considering one factor alone. That is what occurred here. The circuit court's unequal division of MGL Fitness was based entirely upon its analysis of the parties' respective contributions to the marriage pursuant to Wis. Stat. § 767.255(3)(d). The circuit court completely neglected to address any of the other statutory factors, and therefore applied an incomplete, and thus incorrect, standard of law.

¶ 23. The circuit court relied in part upon Parrett v. Parrett, 146 Wis. 2d 830, 432 N.W.2d 664 (Ct. App. 1988), in which the court of appeals affirmed a circuit court's unequal division of business assets because the husband served as " 'the genius and driving force behind the commencement of the business and its development and prosperity.'" Parrett, 146 Wis. 2d at 835. In Parrett, however, the court's unequal property division was also based on the relatively short duration of the marriage (seven years), the fact that neither party "brought much property to the marriage," the age, health, and earning capacity of the wife, the absence of any contribution by the wife to the education, training, or earning capacity of the husband, and the "generous child support" and maintenance awards in the case. Id. at 834-35. The court in Parrett did not confine its analysis to the relative contributions of each spouse to the development of the business, but, rather, considered other relevant statutory factors.

¶ 24. We note, too, that Parrett was decided under the prior statute. The text of Wis. Stat. § 767.255(3) now explicitly requires that any deviation from the presumptive equal property division be based upon consideration of all the statutory factors.

¶ 25. This is not to say that the circuit court is precluded from giving one statutory factor greater weight than another, or from concluding that some factors may not be applicable at all. Property division in divorce remains a discretionary decision of the circuit court, but the record must at least reflect the court's consideration of all applicable statutory factors before a reviewing court can conclude that the proper legal standard has been applied to overcome the presumptive equal property division under Wis. Stat. § 767.255(3). Circuit courts must subject requests for unequal division of property to the proper statutory rigor. The failure to do so is an erroneous exercise of discretion.

¶ 26. We emphasize, however, that a circuit court's failure to address factually inapplicable statutory factors will not he an erroneous exercise of discretion. As we have noted, in considering a request for unequal property division under Wis. Stat. § 767.255(3), the circuit court may summarily conclude that certain of the statutory factors are irrelevant. For example, subsection (3)(h), pertaining to consideration of the award of the family home to the party having physical placement of the children, will not be applicable to a childless divorcing couple. Similarly, subsection (3) (i), pertaining to consideration of the amount and duration of maintenance and family support awards, will not he applicable unless maintenance and family support are awarded.

¶ 27. Neither do we hold that every incomplete consideration of the statutory factors must be reversed as an erroneous exercise of discretion. A circuit court's failure to consider all the statutory factors might well be harmless, particularly where the overlooked factors are only marginally relevant or not relevant at all. See Parratt, 146 Wis. 2d at 842; Wis. Stat. § 805.18(2).

¶ 28. As we have noted, the circuit court's unequal division of the most valuable marital asset in this case, MGL Fitness, reflects consideration of only one of the statutory factors, the contribution of each party to the marriage, pursuant to subsection (3)(d) of Wis. Stat. § 767.255. Moreover, the circuit court's analysis of even this sole statutory factor contradicts the explicit legislative purpose to "recognize the valuable contributions of both spouses during the marriage," as well as our case law establishing marriage as an equal partnership, in which the contributions of the spouse who is primarily engaged in child-rearing and homemaking are presumptively valued equally with those of the income-earning spouse. The spouse who raises the children and cares for the family home contributes, albeit indirectly, to the development and expansion of a family business, by carrying the child-rearing and homemaking responsibilities of the marriage partnership, enabling the other spouse to focus more intensively on the business.

¶ 29. Here, the circuit court devalued the contributions of the stay-at-home mother as against the entrepreneurship of the husband precisely because she did not directly contribute to the development and expansion of the family business. While it is not per se impermissible to assign greater or lesser weight to spousal contributions depending upon the facts in the case, it is an erroneous exercise of discretion to do so without considering the other applicable statutory factors and in a way that eviscerates the legislative purpose to place child-rearing and homemaking on an equal footing with income-earning for purposes of property division in divorce.

¶ 30. It is true that the total property division in this case — 54-46 percent in favor of Michael — did not substantially deviate from the statutory presumption of 50-50. The deviation, however, was arrived at without considering the required statutory factors, and was, therefore, an erroneous exercise of discretion. See King, 224 Wis. 2d at 251 ("A failure to apply or a misapplication of the statutory factors is an erroneous exercise of discretion."). We reverse and remand for reconsideration of the property division in accordance with the statutory standards.

¶ 31. We reject, however, Marcia's challenges to the child support and maintenance awards. The circuit court deviated from the percentage guidelines for child support pursuant to Wis. Stat. § 767.25(lm). However, the child support order exceeded Marcia's own child support request, which was itself a deviation from the percentage guidelines. We recognize that Marcia's child support request was accompanied by an unsuccessful request for a substantial maintenance award; it was, nevertheless, a concession that deviation from the percentage standard was appropriate. Having conceded that deviation from the percentage guidelines was appropriate, and having secured a child support award in excess of that which she requested, Marcia cannot now argue that deviation was unwarranted. State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996) (a party who succeeds in arguing a position in a legal proceeding is judicially estopped from arguing a contrary position simply because his or her interests have changed).

¶ 32. Finally, we conclude that the circuit court's decision on the issue of maintenance reflects consideration of the relevant statutory factors under Wis. Stat. § 767.26, as well as the "twin goals" of maintenance: support and fairness. King, 224 Wis. 2d at 250; LaRocque v. LaRocque, 139 Wis. 2d 23, 33, 406 N.W.2d 736 (1987). The circuit court's decision on maintenance was legally and factually comprehensive and thoroughly reasoned, and its award of $615 per month for a period of eight years was not an erroneous exercise of discretion.

¶ 33. Marcia concedes that the circuit court followed this court's decision in LaRocque in arriving at an amount of maintenance necessary to meet the goal of sustaining a pre-divorce standard of living, but objects to the circuit court's subtraction from that amount a sum representing the funds she claimed were for purposes of savings. The circuit court explained that it subtracted this "savings" amount because Marcia had been awarded substantial liquid assets totaling $787,951 that would "insure her financial security into the future," that she would not be "burdened with any debt as she leaves this marriage," and that pursuant to the divorce judgment, she would have $14,022 per month in combined support payments and income-producing assets. This analysis reflects an appropriate exercise of discretion.

¶ 34. For the foregoing reasons, we reverse and remand this matter to the circuit court for reconsideration of the issue of division of property pursuant to Wis. Stat. § 767.255(3). The circuit court unequally divided the most valuable marital asset, MGL Fitness, without addressing all the applicable statutory factors that must be considered in order to overcome the presumption of equal property division. In so doing, the circuit court applied an incorrect standard of law, and therefore erroneously exercised its discretion.

By the Court — The decision of the court of appeals is reversed and the cause remanded to the circuit court for further proceedings consistent with this opinion.

       All subsequent references to the Wisconsin Statutes are to the 2001-2002 volumes unless otherwise indicated.

       The circuit court set the fair market value of MGL Fitness at $1,782,831.

       Wisconsin's rules for distribution of property at divorce are a ''hybrid" form of equitable distribution. They begin with a presumption of equal division of all property other than that acquired by gift or inheritance but then require the court to consider a list of equitable factors, including need, to see whether the presumed distribution should be varied.
      Distribution of spousal property at divorce without regard to title or property ownership during marriage follows from the conception of marriage as a partnership and attempts to recognize homemaking and childrearing contributions as well as financial contributions.
      Howard S. Erlanger and June S. Weisberger, From Common Law Property to Community Property: Wisconsin's Marital Property Act Four Years Later, 1990 Wis. L. Rev. 769, 771 n.10 (internal citations omitted).

       In 1971, the state Senate had noted that the "after considering” language only required the trial judge to consider the relevant statutory factors, rather than each factor: "In its analysis of the proposed law, the Legislative Reference Bureau concluded that: 'The estate of either or both parties may be divided by the court after considering all appropriate factors.'" Wilberscheid v. Wilberscheid, 77 Wis. 2d 40, 46-47 n.7, 252 N.W.2d 76, 80 (1977)(emphasis added) (citing Legislative Reference Bureau, Drafting File, Chapter 220 (1971) and 1971 Senate Bill 241 (March 3, 1971)). The relevant portion of the statute, Wis. Stat. § 247.26, was split into its own section, Wis. Stat. § 247.255. See, §§ 41-42, ch. 105, Laws of 1977. It was then renumbered as Wis. Stat. § 767.255. See § 50, ch. 32, Laws of 1979. Effective May 6, 1994, the legislature amended Wis. Stat. § 767.255(3) to include the "all of the following" language. See 1993 Wis. Act 422.


source: Caselaw Access Project

author: WILLIAM A. BABLITCH, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant-Petitioner, v. Larry G. Edwards, Defendant-Respondent.
    Supreme Court

      No. 01-3352-CR.

      Oral argument March 5, 2003.

    Decided June 27, 2003.

    2003 WI 68
    (Also reported in 665 N.W.2d 136.)

      For the plaintiff-appellant-petitioner the cause was argued by Michael R. Klos, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.
    For the defendant-respondent there was a brief and oral argument by Martha K. Askins, assistant state public defender.
   WILLIAM A. BABLITCH, J.

¶ 1. The State of Wisconsin (State) petitions this court to review an order of the court of appeals that dismissed the State's appeal. State v. Edwards, No. 01-3352-CR, unpublished order (Wis. Ct. App. Mar. 8, 2002). The circuit court had dismissed a criminal action on the grounds that the State had not brought its case against Larry Edwards (Edwards) for trial within the statutory time limit. The State then filed a motion for reconsideration with the circuit court, requesting that the court specify whether its dismissal was with or without prejudice. The circuit court denied the motion for reconsideration, ruling that its original judgment was with prejudice. The State appealed the denial of its motion for reconsideration. The court of appeals dismissed the appeal on the ground that the State's motion for reconsideration did not raise a "new issue" that was distinct from the original judgment because the original judgment was necessarily with prejudice. We respectfully disagree. We conclude that the State raised a "new issue" in its motion for reconsideration because the circuit court did not clearly dispose of whether the dismissal was with prejudice in its original judgment. Accordingly, we reverse the order of the court of appeals and remand to the court of appeals for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 4, 2000, Edwards, who was incarcerated in the Wisconsin prison system, was charged with one count of substantial battery and one count of intimidating a victim in violation of Wis. Stat. §§ 940.19(3) and 940.45(3) (1999-2000). On November 14, 2000, Edwards signed a request for a prompt disposition of the charges against him under Wis. Stat. § 971.11(2), which is entitled "Prompt disposition of intrastate detainers." Under § 971.11, an inmate may request a prompt disposition of an untried criminal case by sending a written request to the district attorney. If an inmate requests a speedy disposition under the statute, the "district attorney shall bring the case on for trial within 120 days after receipt of the request. . . ." § 971.11(2). Furthermore, if the "district attorney moves to dismiss any pending case or if it is not brought on for trial within the time specified in sub. (2) or (3) the case shall be dismissed ...."§ 971.11(7).

¶ 3. On August 23, 2001, Edwards moved to dismiss the charges based on the State's failure to com-menee a trial. On September 5, 2001, the circuit court for Racine County, Judge Stephen Simanek presiding, held a hearing on Edwards' motion. The circuit court found that the State had not received Edwards' request for a prompt disposition because it had been apparently lost in the mail. Consequently, the circuit court found neither Edwards nor the State at fault:

I don't know if the U.S. Postal Service is the one who screwed up here, but I do know that Mr. Edwards did nothing wrong. He did what he was required to do. And the State, of course, did nothing wrong. The District Attorney's Office [was not in the wrong], because they did not know what his [Edwards'] request was.

The circuit court acknowledged that the 120 days does not begin to run under Wis. Stat. § 971.11(2) until "receipt" of the request; however, the court concluded that if this was the case, then "the purpose of the statute is nullified" because the State would essentially have "forever to pursue the matter." Consequently, the circuit court granted Edwards' motion, and "order[ed] that 00-CF-0836 be dismissed for noncompliance under 971.11."

¶ 4. On October 9, 2001, the State filed a motion for reconsideration, stating, in part, that "[t]he Court did not specify whether the dismissal was with prejudice or without prejudice consistent with the ruling in State v. Davis, 242 Wis. 2d 344, 354 (Ct. App. 2001)." On October 23, 2001, the circuit court held a hearing on the State's motion for reconsideration. The circuit court framed the dilemma as "what do you do in a situation where neither side is at fault?" and ultimately decided that the onus should be on the State rather than Edwards. In denying the State's motion for reconsideration, the circuit court reasoned as follows:

The State did nothing wrong here. Their requirement to act is triggered by receipt of something they never received. But if the Court were to allow the dismissal to be without prejudice, they would have essentially forever to pursue Mr. Edwards.
In light of that, I think it makes no sense to dismiss without prejudice because it eliminates any remedy, any possible remedy for Mr. Edwards.
I will, therefore, having failed to state with specificity back in September, will state at this point that the Court's dismissal pursuant to 971.11(7) is with prejudice. Any other way to look at this or handle this would leave the defendant with a right without a remedy.

¶ 5. The State appealed the circuit court's order denying its motion for reconsideration on December 6, 2001. On December 21, 2001, the court of appeals requested that the parties submit memoranda addressing whether it had jurisdiction over the appeal, and the parties submitted the requested memoranda. The court of appeals concluded that it did not have jurisdiction over the appeal because "[n]o right to appeal exists from a motion for reconsideration which presents the same issues as those determined in the order or judgment sought to be reconsidered." (citing Silverton Enterprises v. Gen. Cas., 143 Wis. 2d 661, 665, 422 N.W.2d 154 (Ct. App. 1988; Ver Hagen v. Gibbons, 55 Wis. 2d 21, 26, 197 N.W.2d 752 (1972)). The court of appeals reasoned:

The trial court dismissed because the State failed to comply with the speedy disposition requirements of the statute. There would be no sanctions for delays by the State if such a dismissal could be without prejudice. We conclude that the very character of the dismissal, as well the language of the circuit court at the time it dismissed the matter, establish that the dismissal was with prejudice. Since the dismissal must be presumed to have been with prejudice, the motion for reconsideration did not present a new issue.

Edwards, No. 01-3352-CR, unpublished order (emphasis added).

¶ 6. The State petitioned this court for review of whether the court of appeals erred when it concluded that it did not have jurisdiction to hear the State's appeal from the circuit court's order denying the motion for reconsideration. This court granted the State's petition for review on September 26, 2002.

ANALYSIS

¶ 7. Whether the court of appeals erred in concluding that it did not have jurisdiction to hear the State's appeal on the basis that the State's motion for reconsideration did not raise a "new issue" presents a question of law that this court reviews de novo.

¶ 8. Neither party disputes that "[n]o right of appeal exists from an order denying a motion to reconsider which presents the same issues as those determined in the order or judgment sought to be reconsidered." Silverton Enterprises, 143 Wis. 2d at 665 (citing Marsh v. Milwaukee, 104 Wis. 2d 44, 46, 310 N.W.2d 615 (1981); Ver Hagen, 55 Wis. 2d at 26). In other words, an "order is not appealable where ... the only issues raised by the motion were disposed of by the original judgment or order." Ver Hagen, 55 Wis. 2d at 25 (emphasis added). We have stated that in order for a judgment to be final it must "dispose of the entire matter in litigation." Marsh, 104 Wis. 2d at 48 (emphasis added). Thus, we focus on the narrow issue of whether the State's motion for reconsideration, which requested that the circuit court address whether the dismissal was with prejudice, raised a "new issue" that was "not disposed of by the original order [or judgment]." Barneveld State Bank v. Petersen, 68 Wis. 2d 26, 30, 227 N.W.2d 690 (1975).

¶ 9. Edwards claims that no new issue was raised in the State's motion for reconsideration because the motion merely asked for clarification, and it can be inferred from the transcript of the September 5, 2001 hearing that the circuit court intended to dismiss with prejudice. In contrast, the State argues that its motion for reconsideration presented a new issue because the circuit court had not ruled in the September 5, 2001 hearing whether its order was with prejudice. Thus, the motion for reconsideration asked the circuit court to exercise its discretion to determine whether the dismissal was with prejudice.

¶ 10. At the September 5, 2001 hearing, the circuit court did not state whether the dismissal was with prejudice. There is no argument as to whether this issue was explicitly disposed of at the September 5th hearing — it was not. Rather, the dispute pertains to whether it was implicitly disposed of in the original judgment. Although Edwards points to language from the September 5th hearing to support his contention that the original judgment was dismissed with prejudice, we are not persuaded.

¶ 11. At the September 5th hearing, the circuit court stated that "[t]he purpose of the statute is to expedite these things. They were not expedited. Consequences are, he walks. Motion granted." Edwards argues that these statements make clear that the circuit court was dismissing the action with prejudice — we are not convinced. "He walks" could mean forever; it could also mean until he is recharged. The circuit court's decision needed clarification. Furthermore, as evidenced by the State's request in its motion for reconsideration, it was obviously not clear to the State whether the dismissal was with prejudice. Although in some cases it may be clear that a circuit court is implicitly dismissing an action with prejudice, the record in this case does not support this level of certainty.

¶ 12. In addition, we note that the court of appeals has liberally applied the "new issues" test for determining whether an order denying reconsideration is appealable. Harris v. Reivitz, 142 Wis. 2d 82, 88, 417 N.W.2d 50 (Ct. App. 1987). In Harris, the court of appeals concluded that the test should be liberally applied based on this court's liberalization of appeal-ability in adopting the "new issues" test in Ver Hagen. Id. The court also reasoned that "a liberal application of the Ver Hagen new issues test is consistent with the policy favoring reconsideration. The supreme court encourages litigants to request the trial courts for reconsideration as a method of correcting errors." Id. at 89 (citing Kochel v. Hartford Accident & Indent. Co., 66 Wis. 2d 405, 418, 225 N.W.2d 604 (1975)).

¶ 13. In sum, based on our review of the transcripts of the circuit court's hearings on September 5, 2001 and October 23, 2001, we conclude that the State's motion for reconsideration raised a new issue, and is therefore appealable. The State's motion for reconsideration requested that the circuit court specify whether the dismissal was with or without prejudice. It was not clear from the September 5th hearing whether the dismissal was with prejudice; consequently, the issue was not "disposed of' in the original judgment. Only after the October 23, 2001 hearing on the State's motion for reconsideration was it clear that the dismissal was with prejudice. Therefore, since the motion for reconsideration raised a new issue, the State may appeal the denial of its motion for reconsideration to the court of appeals. Accordingly, we reverse the order of the court of appeals and remand for proceedings consistent with this opinion.

By the Court. — The order of the court of appeals is reversed, and the cause remanded to the court of appeals.

       All references to the Wisconsin Statues are to the 1999-2000 version unless otherwise indicated.

       Wisconsin Stat. § 808.04(4) provides that "an appeal by the state . . . shall be initiated within 45 days of entry of the judgment or order appealed from." Wis. Stat. § 808.04(4). We note that there is no evidence that the State attempted to use a motion for reconsideration as a stalling technique to extend its time to appeal. The State filed its motion for reconsideration well before expiration of the 45-day time limit for appeal.


author: DAVID T. PROSSER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Joseph F. Jiles, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 02-0153-CR.

      Oral argument April 29, 2003.

    Decided June 27, 2003.

    2003 WI 66
    (Also reported in 663 N.W.2d 798.)

      For the defendant-appellant-petitioner there were briefs by Mark S. Rosen and Rosen and Holzman, Ltd., Waukesha, and oral argument by Mark S. Rosen.

    For the plaintiff-respondent the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
   DAVID T. PROSSER, J.

¶ 1. This is a review of an unpublished decision of the court of appeals that affirmed both the defendant's conviction following a guilty plea to one count of first-degree reckless injury by use of a dangerous weapon, and one count of armed robbery, both as party to a crime, and the circuit court's order denying the defendant's motion for postconviction relief.

¶ 2. On May 15, 2000, Joseph F. Jiles (Jiles) was arrested at 11:30 p.m. shortly after an armed robbery and shooting at a Milwaukee gas station. He was taken into police custody and transported to the Milwaukee Police Department. At 4:03 a.m. Jiles was awakened by a Milwaukee police detective and questioned about the robbery. Over the next 80 minutes he allegedly made a number of incriminating admissions about his involvement in the robbery, which the detective reduced to writing in a report that Jiles signed.

¶ 3. In due course, Jiles moved to suppress his statements. He claimed that: (1) he was not informed of his constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966), prior to being interrogated; (2) he was unable to make a voluntary statement to police because he was intoxicated due to marijuana use prior to his arrest; and (3) any statements he made were not voluntary because they were the result of overbearing conduct by the interrogating officer.

¶ 4. The issue presented is whether Jiles received a full and fair evidentiary hearing on this motion to suppress his statements.

¶ 5. We conclude in this fact-specific matter that Jiles did not receive a full and fair hearing because the State did not meet its burden of proof. We are disturbed by the disregard of established procedure that we see in the record. We reverse the decision of the court of appeals, vacate Jiles' judgment of conviction, and allow Jiles to withdraw his guilty plea. We remand this matter to the circuit court for a new Miranda-Goodchild hearing if Jiles renews his motion to suppress his statement.

FACTS

¶ 6. This case is about the proper administration of justice. We do not focus on the crime, which was a violent robbery; or on the defendant; or on the innocent victim who was badly injured and blinded in one eye when she was shot in the head. We focus solely on the proceedings, especially the Miranda-Goodchild hearing, because proceedings of this nature may impact thousands of criminal cases.

¶ 7. Joseph Jiles was taken into custody on May 15, 2000. He waived his preliminary examination, and a jury trial was calendared for September 12, 2000. At a hearing on September 5, the trial date was vacated when Jiles' defense counsel, Daryl A. Kastenson, raised questions about the defendant's competency. Milwaukee County Circuit Judge Robert Crawford suspended the proceedings and ordered a competency examination. At this hearing, Kastenson and Assistant District Attorney Michael Mahoney also signed a "Felony Pretrial Scheduling Order" setting an October 9 final motion date, an October 20 final pretrial, date, and an October 24 jury trial date. The order contained a handwritten note: "(1) Any Miranda Goodchild motions to be filed so motion can be heard on 10/9/00-1:30 EM."

¶ 8. On September 20, Kastenson signed the Jiles motion to suppress evidence. It was filed with the court on September 22.

¶ 9. On October 12, the court convened a hearing to receive and consider a psychiatrist's report about Jiles' competency. Present in court with Judge Crawford were Assistant District Attorney Douglas Simpson, defense counsel Kastenson, and defendant Jiles. The psychiatrist had concluded in his report that Jiles was malingering. The defense did not challenge the psychiatrist's conclusion, and the court determined that Jiles was competent. Then the following exchange took place:

MR. KASTENSON: Yes, Your Honor. Currently this matter is set for a final pretrial next Friday at 8:30 and jury trial on the 24th of October at 8:30.
I have filed some motions in this case as well, and I don't know if the Court wishes to take them up today or next Friday. One dealing with severance of the trials of this defendant and the codefendant, Lyron Wilson. That motion I would like to withdraw at this time because it's my understanding that Mr. Wilson entered a guilty plea before this Court this past Tuesday and will not be having a jury trial.
THE COURT: Mr. Wilson did plead guilty. I am prepared to address your motion to suppress the statements. Do you have the police reports, Mr. Simpson?
MR. SIMPSON: Regarding which part of the — I thought I attached them to mine. I did not, Judge?
THE COURT: I don't have a response from you, Mr. Simpson.
MR. SIMPSON: I filed one.
MR. KASTENSON: I received a response from Mr. Simpson, but it was the response to Mr. Wilson's motion to suppress the statement rather than specifically a response to my client's motion to suppress the statement.
MR. SIMPSON: Then I don't know if I ever received a motion from Mr. Jiles because I would have answered it.
MR. KASTENSON: I filed with the Court the original, of course, with the clerk's stamp and the district attorney's stamp dated September 22nd. I'm also showing Mr. Simpson a photocopy of a letter with the motions attached that I sent to him on September 22nd.
MR. SIMPSON: I do not recall receiving this. I note that attached to the defendant's motion are the reports. So if the Court has that, at least it gets the Court that far. If you'd like another copy, I can provide one. I don't have this motion nor have I responded to it.
THE COURT: The motion which Mr. Jiles filed on September 22nd, 2000 bears the district attorney's Bate stamp reflecting service on the District Attorney's Office. It is helpful for future reference, Mr. Kastenson, to file the motions here in Branch 9. The District Attorney's Office systems are inadequate, and documents that are actually filed in the District Attorney's Office seem to have a way of getting lost.
MR. KASTENSON: That's why I mailed a copy to Mr. Simpson, but apparently that was lost in his office as well but—
MR. SIMPSON: I certainly believe 'cause I've had many, many cases with Mr. Kastenson that he did exactly what he says. And I, quite frankly, don't expect the Court to offer the State any leeway should it feel that my failure to respond deserves something in terms of oral chastisement. But I can only assure the Court that I answer these things whenever I see them. If I missed this one and I should have had it, I apologize. But I tried to answer it.

¶ 10. This exchange reveals that the court had not scheduled a hearing for October 12 on the suppression motion. The assistant district attorney had lost the motion, was surprised by the hearing, and unprepared to present evidence. The court expected the assistant district attorney to produce a police report, and so the prosecutor scrambled to point out that relevant police reports were attached to the defendant's withdrawn, unrelated motion to sever his case from his co-defendant.

¶ 11. Undeterred by the State's lack of preparedness, Judge Crawford plunged forward. He addressed the public defender:

THE COURT: Do I understand that you raise two challenges? First, you challenge whether the police, in fact, informed Mr. Jiles of his Miranda rights. And your second challenge is that, due to his voluntary intoxication, based upon his marijuana use, that any statements that he did make to police were not knowing and voluntary?

¶ 12. After receiving an affirmative answer, the court launched into a lengthy discussion of the State's burden at a suppression hearing as well as the role of the court:

THE COURT: Under State against Armstrong, the district attorney bears the burden of proof on both these issues. The district attorney must prove by a preponderance of the evidence that, in fact, a defendant who was subjected to custodial interrogation was given his Miranda warnings and that the defendant made a knowing and voluntary waiver of those warnings.
The question of whether a statement was taken involuntarily in violation of the due process clause requires the district attorney to prove beyond a reasonable doubt that the statement was voluntary. Statements can be involuntary if a defendant's use of narcotic drags or alcohol so impairs a person's ability that their statements cannot be said to be the product of a free and voluntary choice.
So during the evidentiary hearing, I'll be focusing on a couple of things. I'll be focusing on whether the defendant was in custody, whether he was given Miranda warnings, whether he made a knowing and voluntary waiver of those warnings and whether he was then subjected to interrogation.
I'll also be focusing on the due process question, on any behavior which indicates that the defendant was fully possessed of his faculties. That means any behavior that shows that the defendant was asserting his will and making choices will be relevant to me in my decision on whether his consumption of marijuana or any other drug would have overcome his ability to make free and informed choices.
The State's burden of proof on the Miranda issue and the due process issue has two components. One is the burden of production; the other is the burden of persuasion. The judge is not bound by the rules of evidence when considering whether a defendant made a knowing and voluntary waiver of his Miranda rights and whether his statement was voluntary under the due process clause.
So I'll start with the police reports which are attached to the defendant's motion to sever. The reports recite the circumstances of Mr. Jiles' interrogation. Page one of the police reports reflects that Mr. Jiles was arrested on May 15, 2000 at 11:34 p.m. Page two of the police reports reflects that the next day on May 16, 2000 at 3 a.m., Mr. Jiles was interrogated by Detective Billy Ball. Page two recites that Detective Billy Ball advised—

¶ 13. At this point, the defense counsel intervened:

MR. KASTENSON: Excuse me, Your Honor. I think — Actually I think that is Mr. Wilson's statement. The codefendant's statement was attached to my batch of motions because it pertained to my motion to sever the cases for trial. In the filing that I made, I believe it's the last three pages of that filing that is Mr. Jiles' statement.

¶ 14. After acknowledging that he had been reading from the wrong police report, the court went on:

THE COURT: Thank you for that correction. I hadn't noticed that I was looking at the statement made by the codefendant Wilson. I have turned now to the three-page statement of Mr. Joseph Jiles. It reflects that he was arrested on May 15, 2000 at 11:30 p.m. Near the bottom of page one there's a place for the police to write any additional comments. They wrote, quote, Jiles denies being high on drugs or drunk on alcohol. Jiles admits to being counseled at mental health and was prescribed Ritalin which he—
MR. SIMPSON: When he.
THE COURT: —when he was nine, closed quote. On page two of the police statement dealing with the interrogation of Joseph Jiles. The report recites that on May 16th, at 4:03 a.m., Mr. Jiles was questioned. That would be approximately four-and-a-half hours after he was arrested. The report recites that Detective Ronald Burch advised Joseph Jiles of his Miranda rights. The report recites that Joseph Jiles stated he understood all of his rights, and the report recites that Joseph Jiles waived his rights and made the following statements.
Following this recitation of information, there was a X placed on the report; and apparently Joseph Jiles signed his name. Then the report goes on to recite the circumstances of Joseph Jiles' involvement. On page three of three, the report has a place where Joseph Jiles was free to sign his name, and he did sign his name. The report reflects that the interrogation concluded on May 16, 2000 at 5:25 a.m. That means that the interrogation lasted approximately one hour and 22 minutes, starting at 4:03 a.m. and concluding at 5:25 a.m.
This information which I've recited from page one, page two and page three of Joseph Jiles' police report dealing with the interrogation by police of Joseph Jiles meets the State's burden of production on the question of whether Mr. Jiles received Miranda warnings and waived those warnings knowingly and voluntarily prior to being interrogated. The report also meets the State's burden of production and demonstrated that the statements that were made were knowing and voluntary.
I reach these preliminary conclusions based on the information on page one where the defendant himself denies being high on drugs or drunk on alcohol, and there's certainly nothing inconsistent which the officers noted. I also base these preliminary findings on the statement at the top of page two which recite in very plain language that Mr. Jiles was given his Miranda rights and he waived those rights.
So, Mr. Kastenson, I'll turn to you for any evidence you have to offer which I might consider in opposition to the information I've recited when I make my ultimate conclusion on whether the State's carried its burden of proof on the two issues that Mr. Jiles raises. Do you have any evidence that you want to present either by way of documents or testimony?
MR. KASTENSON: Yes. I call Mr. Jiles to testify.

¶ 15. At this point in the proceedings, the State's only contribution had been to point out a document attached to an unrelated motion offered by the defendant and to correct the court when the court misread a word in the police report. The assistant district attorney even failed to advise the court that it was reading from the wrong police report.

¶ 16. After Jiles had testified, claiming that he did not know what Miranda warnings were and that he was still under the influence of marijuana when he was questioned, the prosecutor asked the court to take notice of the psychiatrist's report prepared for the competency hearing and its conclusions regarding Jiles' malingering and general lack of credibility.

¶ 17. Jiles' counsel objected to the report as improper opinion evidence from an examiner as to another's credibility. The court responded that it would consider this report's conclusions because the rules of evidence did not apply to the hearing and because the report constituted an informed forensic opinion of Jiles' basic psychology.

¶ 18. Then the court asked the prosecution if it wished to argue whether the State had demonstrated a proper Miranda waiver by a preponderance of the evidence and the voluntariness of Jiles' statements beyond a reasonable doubt. The prosecutor responded that further argument was not necessary, given what had already been heard. Jiles' defense counsel then made several arguments as to why, based on the record before the court at this hearing, the State had not met its burden of proof.

¶ 19. The circuit court thereafter made numerous findings, including that the police report fairly recited that Jiles was advised of his Miranda rights and that he knowingly and voluntarily waived them. The court also found that Jiles twice signed the report. One signature appeared immediately after some writing indicating that the police informed Jiles of his Miranda rights and that Jiles waived them. The other signature followed the recitation of Jiles' statements. The court also found that Jiles was not credible in his testimony. It then concluded, as matters of law, that Miranda warnings were given and that Jiles knowingly and voluntarily waived them. The court also concluded that Jiles' statement was proven beyond a reasonable doubt to be voluntary because Jiles' "ability to make informed choices was not overborne by any marijuana which he may have consumed prior to his arrest." On these grounds, the court denied Jiles' motion to suppress his confession.

¶ 20. Eight days after the motion hearing, Jiles pled guilty to one count of first-degree reckless injury with the use of a dangerous weapon, and one count of armed robbery with the use of force, both as a party to a crime. Jiles was later sentenced to 20 years on the first count and 40 years, to be served consecutively, on the second count, with 35 years of his sentence to be spent in prison and the remainder slated for extended supervision.

¶ 21. Jiles filed a postconviction motion under Wis. Stat. § (Rule) 809.30 requesting a Machner hearing to address the alleged ineffectiveness of his trial counsel. Jiles based his postconviction claim on his trial counsel's failure to object to: (1) the circuit court's reliance on a police report instead of live testimony at the Miranda-Goodchild hearing; (2) the court's reliance on a police report that was not properly authenticated; and (3) the court's reliance on improper sentencing information. The circuit court denied the postconviction motion without holding a hearing.

¶ 22. In his written order denying relief, Judge Crawford declared:

[THE COURT:] A judge may rule upon motions to suppress without taking testimony if police reports, other documents, photographs, or physical objects provide an adequate factual basis for resolving the constitutional questions of fact. A judge is not required to consider testimony from the interrogating officer.
A lawyer should not be surprised if a motion to suppress statements is decided on police reports or other supporting papers. The Wisconsin Rules of Evidence exempt from their coverage hearings on "[p]re-liminary questions concerning. .. the admissibility of evidence-" Wis. Stat. § 901.04(1). This exemption is "restate[d], for convenience," in Wis. Stat. § 911.01(4)(a):
The judge decides, when ruling upon a motion to suppress evidence, whether the defendant's statement or other physical evidence was come in by violation of a constitutional right or Miranda. If it was, then the evidence is suppressed and will not be received at trial for the jury's consideration at trial. The judge's decision on the admissibility of this evidence, with minor exceptions set out in Wis. Stat. § 901.04(1), is not bound by the rules of evidence.
The judge, when ruling upon a motion to suppress, may rely upon (1) police reports, (2) oral testimony that would ordinarily be excluded as hearsay under Wis. Stat. § 908.01, and (3) "records, affidavits or other papers," Wis. Stat. §§ 802.01(2)(b) (supporting papers for motions), 972.11(1) (applying civil rules generally to criminal practice). Thus, a prosecutor may provide the judge with records, affidavits, or other papers that set out facts necessary for resolution of constitutional questions. Even if the parties present testimony, time may be saved by the introduction of records, affidavits, and police reports.

ANALYSIS

¶ 23. Wisconsin Stat. § 971.31(2) requires a defendant to raise many defenses and objections by motion before trial or they will be deemed waived. In this case, the defendant moved to suppress his statement before trial, Wis. Stat. § 971.31(3), and he maintained his objection to the admissibility of the statement throughout the suppression hearing.

¶ 24. The defendant thereafter entered a guilty plea. An order denying a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a judgment of conviction, "notwithstanding the fact that such judgment was entered upon a plea of guilty." Wis. Stat. § 971.31(10). Because the present case involves a direct áppeal from a judgment of conviction as well as an appeal from a denial of post-conviction relief, the defendant is entitled to challenge the court's order on the admissibility of his statement.

¶ 25. Courts conduct pretrial hearings on such preliminary questions as the admissibility of evidence under Wis. Stat. § 901.04. The admissibility of evidence includes the admissibility of confessions. Wis. Stat. § 901.04(3); see also Wis. Stat. § 971.31(3). The hearings considering the admissibility of confessions are known as Miranda-Goodchild hearings after Miranda v. Arizona, 384 U.S. 436 (1966), and State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965). As a rule, the hearings are designed to examine (1) whether an accused in custody received Miranda warnings, understood them, and thereafter waived the right to remain silent and the right to the presence of an attorney; and (2) whether the admissions to police were the voluntary product of rational intellect and free, unconstrained will. State v. Schlise, 86 Wis. 2d 26, 44, 271 N.W.2d 619 (1978). The hearings on these separate but overlapping issues may be held at the same time. Roney v. State, 44 Wis. 2d 522, 523, 171 N.W.2d 400 (1969).

¶ 26. Jiles raised both Miranda and voluntariness issues in his motion to suppress. His motion imposed an evidentiary burden on the State. At a suppression hearing, the State is required to show that the defendant received and understood his Miranda warnings, State v. Armstrong, 223 Wis. 2d 331, 345, 588 N.W.2d 606 (1999); State v. Mitchell, 167 Wis. 2d 672, 697, 482 N.W.2d 364 (1992), and that he knowingly and intelligently waived the rights protected by the Miranda warnings. Armstrong, 223 Wis. 2d at 346; State v. Santiago, 206 Wis. 2d 3, 12, 556 N.W.2d 687 (1996). "The State also bears the burden on the issue of whether the warnings were sufficient in substance." Armstrong, 223 Wis. 2d at 346; Santiago, 206 Wis. 2d at 12. Finally, the State has the burden of showing that the defendant's statements were voluntary. Armstrong, 223 Wis. 2d at 347; Mitchell, 167 Wis. 2d at 696; Goodchild, 27 Wis. 2d at 264. The State's burden throughout the proceedings is preponderance of the evidence. State v. Agnello, 226 Wis. 2d 164, 181-82, 593 N.W.2d 427 (1999).

¶ 27. The importance of Miranda-Goodchild hearings was foreshadowed in Jackson v. Denno, 378 U.S. 368 (1964), where the United States Supreme Court explained that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession. Jackson, 378 U.S. at 376. The Court suggested two optional procedures for determining the voluntariness of a confession, one of which this court adopted in Goodchild, 27 Wis. 2d at 264-65. The Jackson court stressed that a defendant objecting to the admission of a confession "is entitled to a fair hearing in which both the underlying factual issues and the vol-untariness of his confession are actually and reliably determined." Jackson, 378 U.S. at 380. Only a reliable determination on the voluntariness issue satisfies the constitutional rights of the defendant. Id. at 387. Where pure factual considerations are important, a full and reliable determination of voluntariness is required. Id. at 392 (citing Townsend v. Sain, 372 U.S. 293 (1963)).

¶ 28. The defendant argues that he did not receive a full and fair hearing on the motion to suppress his statement. We agree.

¶ 29. The defendant cannot prevail on an argument that the court must apply the rules of evidence at a suppression hearing. Wisconsin Stat. § 901.04(1) provides that, in making a determination on the admissibility of evidence, "the judge is bound by the rules of evidence only with respect to privileges and as provided in s. 901.05." This rule is reinforced by Wis. Stat. § 911.01 (4)(a), which states that, for the most part, the rules of evidence are inapplicable to the determination of preliminary questions of fact under § 901.04(1).

¶ 30. These rules enjoy support from the Supreme Court's analysis in United States v. Matlock, 415 U.S. 164, 172-73 (1974), a case coming out of Wisconsin. The Court stated that "the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence." Id. at 172-74 (discussing Brinegar v. United States, 338 U.S. 160 (1949); Fed. R. Evid. 104(a) & 1101(d)(1), and citing 5 J. Wigmore, Evidence § 1385 (3d ed. 1940); C. McCormick, Evidence § 53 n.91 (2d ed. 1972)); see also United States v. Raddatz, 447 U.S. 667, 679 (1980) ("At a suppression hearing, the court may rely on hearsay and other evidence, even though the evidence would not be admissible at trial.").

¶ 31. The defendant also loses on a contention that a Miranda-Goodchild hearing without the State presenting live testimony from law enforcement officers will never constitute a full and fair hearing and will always amount to a denial of due process. See Matlock, 415 U.S. at 174-75 (citing McCray v. Illinois, 386 U.S. 300, 313 (1967)); State v. Frambs, 157 Wis. 2d 700, 704, 460 N.W.2d 811 (Ct. App. 1990) ("We see no evidence that the Supreme Court intended the protection of the confrontation clause to be available to a defendant in those pretrial situations enumerated in sec. 901.04(1), Stats.").

¶ 32. These conclusions do not diminish the importance of Miranda-Goodchild hearings in our system of criminal justice. These constitutionally required hearings are designed to protect a defendant's right against self-incrimination by assuring that Miranda warnings are given by the police and understood by the defendant and that any statements made by a defendant in custody are voluntary in fact. Miranda-Goodchild hearings promote a complex of values, including the reliability of incriminating statements, the professionalism and integrity of law enforcement, and the fairness of the criminal justice system. The Fourteenth Amendment forbids the use of involuntary confessions, in part, because of the "deep-rooted feeling that the police must obey the law while enforcing the law." Jackson, 378 U.S. at 385-86 (quoting Spano v. New York, 360 U.S. 315, 320 (1959)).

¶ 33. Here, our concern is not with the police. Our concern is with the people in the court system who were charged with protecting the defendant from potential abuse.

¶ 34. Wisconsin Stat. § 901.02 provides guidance to courts. The rules of evidence "shall be construed to secure fairness in administration ... and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined." Id. (emphasis added).

¶ 35. We think it will be a rare case that the State is able to meet its burden of proof at a Miranda-Goodchild hearing by relying exclusively on an un-sworn police report.

¶ 36. In this case, the State did not meet its burden of proof.

¶ 37. Wisconsin Stat. § 971.31(3) provides that "[t]he admissibility of any statement of the defendant shall be determined ... by the court in an evidentiary hearing out of the presence of the jury.. . ." As the circuit court acknowledged, the State has the burden of production and the burden of proof. In this case, the State was obviously not prepared for the hearing. It offered no evidence at the "evidentiary hearing." Whether the State was denied an opportunity to present evidence or whether it gave up its opportunity to present evidence, the result is the same: the State failed to meet its burden of production and thus did not satisfy its burden of proof.

¶ 38. When the State showed surprise that Jiles had filed a suppression motion, the circuit judge intervened and assumed the State's burden of establishing the existence of proper Miranda warnings and volun-tariness. The court took over, sua sponte, and dominated the hearing to such an extent that the State could barely get a word in, much less present evidence.

¶ 39. The Miranda-Goodchild hearing is an evi-dentiary hearing for the parties. It is not a soliloquy for the court. The court must not permit itself to become a witness or an advocate for one party. A defendant does not receive a full and fair evidentiary hearing when the role of the prosecutor is played by the judge and the assistant district attorney is reduced to a bystander. We hold that the procedure employed by the court in this hearing did not conform with the minimum requirements of § 971.31(3) for an "evidentiary hearing" and "did not afford a reliable determination of the volun-tariness of the confession [to be] offered in evidence at trial." Jackson, 378 U.S. at 377.

¶ 40. The record shows that the police report was never formally moved or received into evidence. But even if the report had been received, the court mocked the seriousness of the hearing because the only "evidence" before it was an unsworn police report attached to an unrelated motion filed by the defendant. Adi the court did with the evidence was to read it aloud. The inherent unreliability of this procedure is demonstrated by the fact that the court began by reading the wrong report. Certainly, the procedure the court used did not permit any examination of Detective Burch regarding when the Miranda warnings were given (assuming that they were given), whether they were sufficient in substance, and when the defendant signed his name.

¶ 41. In his motion, the defendant also alleged that he was high on marijuana at the time of his interrogation. The court dismissed this claim by noting that the police report stated: "JILES DENIES BEING HIGH ON DRUGS OR DRUNK ON ALCOHOL." But the procedure employed at the hearing did not permit defense counsel to ask the detective whether the detective or the defendant initiated the discussion about being high on drugs. If it was the detective, was that a standard inquiry, or did Detective Burch notice something or smell something about the defendant? If the inquiry was a standard inquiry, why was a similar inquiry not noted on the co-defendant's report?

¶ 42. Significantly, in its order denying the post-conviction motion, the circuit court drew on testimony from the completely separate sentencing hearing of the co-defendant to explain that:

Seventeen-year-old Joseph F. Jiles and his nineteen-year-old co-defendant shot an elderly woman in the head during a robbery. The two searched desperately for a victim after their marijuana dealer demanded $2,000 in payment for one pound of marijuana that he had fronted the pair. Mr. Jiles smoked his marijuana rather than selling it.

(Emphasis added.) The court's own explanations of events lend plausibility to the defendant's claim that he was high on marijuana.

¶ 43. Although the errors that demand our reversal of Jiles' conviction fall squarely on the shoulders of the circuit court, the other participants in this hearing each share some degree of responsibility.

¶ 44. The prosecutor erred by acquiescing to the circuit court's improper occupation of the State's role at the suppression hearing, especially given the State's acknowledged lack of preparedness. Moreover, when the circuit court finished reading from the police report and concluded that the report met the State's burden of production, the prosecutor should have respectfully requested that the court permit the State to make its own case regarding suppression or to allow the State to supplement what the court had done by its own initiative. The prosecutor remained a bystander before, during, and after the court found that the police report met the State's burden of production. It was not until Jiles' cross-examination that the prosecutor resurfaced in this hearing.

¶ 45. Although the prosecution did eventually elicit information during its cross-examination of Jiles that supported its position, and it did reference the psychiatric report to question Jiles' credibility, the prosecution did not offer either the report or Jiles' testimony as evidence to meet its initial burden of production.

¶ 46. Jiles' trial counsel also could have attempted to remedy the court's error. Counsel could have refrained from presenting any evidence regarding the admissibility of Jiles' statements and forced the State to meet its burden of proof on the evidence proffered by the court alone. Goodchild permits, but does not require, a defendant to testify for the limited purpose of explaining the circumstances under which a confession was obtained. Goodchild, 27 Wis. 2d at 265. When the court asked Jiles' counsel if he had any documentary or testimonial evidence to present, he could have answered that there was no need to submit evidence because the State had failed to meet its burden of proof based on the existing record. While we agree that Jiles' counsel likely saw the proverbial handwriting on the wall after the court found the police report to have met the State's burden of production, declining to go on would have deprived the State of any favorable evidence resulting from Jiles' testimony.

¶ 47. In addition, Jiles’ counsel arguably erred in failing to object to the practice the court was engaging in and failing to insist that the State be required to make its own case regarding the admissibility of Jiles' custodial statement. We acknowledge, however, that Jiles' trial counsel did sufficiently object at the hearing to the State's ultimate failure to meet its burden of proving that a Miranda warning was given to Jiles, that Jiles knowingly and voluntarily waived his rights, and that Jiles' statements were voluntary.

¶ 48. The manner in which Jiles' suppression motion was handled effectively caused the burden of proving an admissible confession to shift from the State to the defendant. While the rules of evidence do not apply at suppression hearings, the State continues to bear the burden of proof at these hearings. Therefore, each court conducting a suppression hearing must maintain the proper role for each participant in order for a full and fair evidentiary hearing to occur.

¶ 49. In conclusion, we reverse Jiles' judgment of conviction. Based on the circuit court's failure to provide a full and fair evidentiary hearing on Jiles' motion to suppress his statements to the police and on the State's concomitant failure to meet its burden of proof, Jiles' Miranda-Goodchild hearing was inadequate. Jiles is entitled to withdraw his guilty plea and to be granted a new and sufficient Miranda-Goodchild hearing. After this hearing, he is entitled to a trial if he so desires.

By the Court. — The decision of the court of appeals is reversed and the cause remanded for proceedings consistent with this opinion.

        State v. Jiles, No. 02-0153-CR, unpublished slip op. (Wis. Ct. App. Oct. 22, 2002).

       Jiles had originally been charged with attempted first-degree homicide, also while armed and party to a crime.

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

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

       The parties focused their arguments on whether Jiles' trial counsel was ineffective for not properly objecting to particular actions taken by the circuit court at his Miranda-Goodchild hearing, with the State highlighting the questionable viability of this claim under the posture and facts of this case. We, however, analyze the sufficiency of Jiles' Miranda-Goodchild hearing through the lens of his direct appeal from his judgment of conviction.