author: CURLEY, J. FINE, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Gary L. Gordon, Defendant-Appellant.
    Court of Appeals

      No. 01-1679-CR.

      Submitted on briefs December 4, 2001.

      Decided January 15, 2002.

    2002 WI App 53
    (Also reported in 641 N.W.2d 183.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven P. Weiss, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James M. Freimuth, assistant attorney general, and James E. Doyle, attorney general.
    Before Fine, Schudson and Curley, JJ.

       Petition to review granted 4-22-02.

   CURLEY, J.

¶ 1. Gary L. Gordon appeals from a judgment entered after a jury convicted him of knowingly violating a domestic abuse injunction, contrary to Wis. Stat. § 813.12(8)(a) (1999-2000), disorderly conduct while armed, contrary to Wis. Stat. §§ 947.01 and 939.63, and second-degree recklessly endangering safety, contrary to Wis. Stat. § 941.30(2). Gordon also appeals from the trial court's order denying his post-conviction motion. Gordon claims that: (1) the trial court erroneously re-instructed the jury on the charge of second-degree recklessly endangering safety, in response to the jury's request; (2) his trial counsel was ineffective for conceding his guilt to the charge of disorderly conduct while armed; (3) the trial court erroneously instructed the jury regarding Wis. Stat. § 939.63 by failing to include the Peete nexus requirement; (4) the trial court erroneously admitted evidence under Wis. Stat. § 908.03(8), and, further, erroneously directed a partial verdict on behalf of the State based on that evidence; and (5) the trial court erroneously exercised its discretion in assessing him costs associated with one of the State's witnesses.

¶ 2. Because we conclude that the trial court properly re-instructed the jury on the charge of second-degree recklessly endangering safety, we affirm Gordon's conviction as to that charge. However, we reverse the "while armed" portion of the judgment finding him guilty of disorderly conduct, as well as the judgment for knowingly violating a domestic abuse injunction, and remand those charges with directions to the circuit court. Finally, we conclude that the trial court erroneously assessed costs against Gordon, and vacate that portion of the judgment of conviction.

I. Background.

¶ 3. On October 29, 1998, Margaret Wilder obtained a domestic abuse injunction against Gordon, her boyfriend of twelve years. Despite the injunction, Wilder and Gordon lived together for approximately three to four months preceding October 1,1999. Wilder used a wheelchair and relied on Gordon for assistance. However, on October 1,1999, Wilder called the police to enforce the domestic abuse injunction. Wilder later testified that she called the police because Gordon was verbally abusive, agitated, and she was concerned that he was on drugs.

¶ 4. The police arrived at Wilder's apartment and Wilder's grandson let in Officer Matthew Bongard, a City of Milwaukee police officer. Officer Bongard observed Wilder in her wheelchair in the living room of the apartment. Wilder then warned the officer that Gordon was "right there and he has some knives." Officer Bongard turned and saw Gordon standing in the hallway holding two knives - a butcher knife and a steak knife. Officer Bongard immediately drew and pointed his gun at Gordon and ordered him to drop the knives. Gordon refused and fled into a back bedroom. Officer Bongard then radioed for support and another police officer on the scene, Officer John Amberg, secured the area outside the apartment.

¶ 5. A neighbor informed Officer Amberg that Gordon had jumped through a window of the apartment and was hiding in some bushes. The officers then began to search the neighborhood. Officer Bongard spotted Gordon behind some hedges a few houses away from the apartment building. Gordon made eye contact with the officer, who again pointed his gun at Gordon and ordered him to drop the knives. Gordon ignored the officer and fled into a neighbor's backyard. Officer Bongard followed Gordon into the backyard where the two were approximately fourteen feet from each other. Gordon was still holding the knives and Officer Bon-gard was still yelling for Gordon to drop them. Gordon then took a step towards Officer Bongard. The officer testified that he feared Gordon was going to attack him with the knives, so he fired two shots at Gordon in quick succession. Gordon, shot once in the left arm and once in the abdomen, received immediate medical attention.

¶ 6. Gordon was charged with knowingly violating a domestic abuse injunction, disorderly conduct while armed, and second-degree recklessly endangering safety. On August 2, 2000, a jury convicted Gordon of the three crimes. Gordon was later sentenced to nine months in prison for violating the domestic abuse injunction, six months for disorderly conduct while armed, and two years for second-degree recklessly endangering safety, all to be served consecutive to one another.

II. Analysis.

A. The trial court properly re-instructed the jury, in response to its request.

¶ 7. Gordon first contends that we should reverse his conviction for second-degree recklessly endangering safety because the trial court erroneously responded to questions from the jury during deliberations. We disagree and affirm his conviction on this charge.

¶ 8. "A trial court has wide discretion in developing the specific language of jury instructions." State v. Foster, 191 Wis. 2d 14, 26, 528 N.W.2d 22 (Ct. App. 1995). Our review is limited to whether the trial court acted within its discretion and we will reverse only if the instructions, taken as a whole, communicated an incorrect statement of the law or otherwise probably misled the jury. See State v. Randall, 222 Wis. 2d 53, 59-60, 586 N.W.2d 318 (Ct. App. 1998). However, the issue of whether a jury instruction fully and fairly explained the relevant law is a question of law, which this court reviews de novo. See County of Kenosha v. C & S Mgmt., Inc., 223 Wis. 2d 373, 395, 588 N.W.2d 236 (1999).

¶ 9. Here, we deal with re-instructing a jury. This court has held that "[j]ust as the initial jury instructions are within the trial court's discretion, so, too, is the necessity for, the extent of, and the form of re-instruction." State v. Simplot, 180 Wis. 2d 383, 404, 509 N.W.2d 338 (Ct. App. 1993) (citation omitted); see also Curl v. State, 40 Wis. 2d 474, 478-79, 162 N.W.2d 77 (1968) ("Re[-]instruction of a jury is a matter of sound discretion of the trial court.") (footnote omitted), oyer- ruled on other grounds by Schimmel v. State, 84 Wis. 2d 287, 298-302, 267 N.W.2d 271 (1978). Therefore, we must determine whether the trial court responded to the inquiries from the jury with sufficient specificity to clarify the jury's problem, see Simplot, 180 Wis. 2d at 404-05, without communicating an incorrect statement of the law or otherwise misleading the jury, see Randall, 222 Wis. 2d at 59-60.

¶ 10. During its deliberations, the jury sent three notes to the court regarding the charge of second-degree recklessly endangering safety. After approximately one and one-half hours of deliberations, the jury sent out a note asking: "What is the State contending is the third charge on the defendant?" With consent of both sides, the court answered in writing that the third charge was: "Second[-]Degree Recklessly Endangering Safety, as outlined in the instructions." Gordon does not challenge the trial court's answer to this question.

¶ 11. After the jury resumed deliberations the next morning, it submitted another note to the court:

We have a sole juror who is holding out on the final charge. Several jurors have suggested that if we knew what 1st Degree Recklessly Endangering Safety entailed, it would clarify this juror's opinion.
Is it possible to learn what the State considers Recklessfiy] Endangering in the first degree?

Over Gordon's objection, the trial court explained:

Here is the difference between first and second[- ] degree recklessly endangering safety.... The first two elements of a first[-] degree case are the same as the two elements of a second[-]degree case. In a first[-]degree case the State is required to prove a third element!:] that the circumstances of the defendant's conduct showed an utter disregard for human life.

The trial court also gave the following cautionary instruction:

First of all, let me remind you that with regard to second[-]degree recklessly endangering safety[,] the elements that the State must prove to you are the elements which are laid out in the written instructions that I gave you and that I read to you at the end of trial. That should be the main focus of your discussion and that's what the State must prove beyond a reasonable doubt, those two elements that I outlined for you.
I think that you raise an interesting question. [I]t is a naturally curious subject as to why we would call that second[-]degree recklessly endangering. ... I think that by telling you the difference you will understand better the issues that you must decide regarding second[-]degree and that must remain the sole focus of your discussions.
.. .While this will help solve your natural curiosity, I want to make sure that you don't go off into a discussion about whether the State could have proven first[degree recklessly endangering safety] or whether the defendant engaged in any conduct that suggested first[-]degree....
You are really only called upon and you're really only allowed to decide the issue as set forth in your previous instruetion[.]
Mr. Gordon has not been accused of [first-degree recklessly endangering safety]. He's not been accused of acting with utter disregard for human life and in fact the only two issues that you must decide are the two issues that I presented to you earlier[.]

¶ 12. After further deliberations, the jurors sent a final note focusing on the second element of the crime of second-degree recklessly endangering safety, i.e., the creation of risk:

In Part II of the third chargef]
A. Did the defendant intend to attack the officer or was the defendant putting the knives down?
-or-
B. Did the defendant create a risk by holding the knives?
-or-
C. Did the defendant know that he was creating a risk?

The trial court responded to this final question by explaining:

What I'm going to first do in responding to your question is tell[] you how I interpret your question, and then I'm going to try to provide you with an answer. What I understand you to be asking is: What do you have to decide in order to resolve the second element of the third charge which is endangering safety? And I'm seeing most of the heads nodding yes.
The very simple answer to the question ... is you have to decide B and C. You don't have to decide A, but you should take it into consideration.

The trial court further clarified:

In the written instructions that you are given[,] you are told that in the second element the State must prove beyond a reasonable doubt that the defendant's conduct created an unreasonable and substantial risk of great bodily harm, and that the defendant was aware that his conduct created such a risk. So, the issue you must decide is has .. . the defendant's conduct created an unreasonable and substantial risk of great bodily harm, and that he was aware that his conduct created that risk.
Now, in your question you refer to intending to attack the officer, putting the knives down and holding the knives. Now, you are not required specifically to decide any of those three things. If you believe those three things happened, those things may be helpful to you in deciding whether a risk was created and whether he was aware of the risk.. . . Those facts and circumstances will help you decide those two questions. Did he create a risk ? And did he know that he was creating a risk?
.. .But the only question you must answer is whether he created a risk, and whether he was aware that his conduct created a risk.

(Emphasis added.)

¶ 13. With respect to the trial court's response to the second question, Gordon does not challenge the wording of the instruction. Rather, he alleges that the trial court "committed prejudicial error in instructing the jury on the uncharged ... offense of First[-] Degree Reckless[ly] Endangering" because the instruction "encouraged the jury to speculate and compromise." We disagree.

¶ 14. The trial court did not recite the jury instruction on first-degree recklessly endangering safety. Rather, it simply responded to the jury's specific and logical inquiry by explaining that the crime of first-degree recklessly endangering safety involves an additional element - the defendant must act with utter disregard for human life. Additionally, the trial court made it abundantly clear that Gordon was not charged with first-degree recklessly endangering safety, that the jurors were not to speculate or deliberate regarding the crime in the first-degree, and that the jury's sole task was to focus on the two elements of the second-degree charge.

¶ 15. We presume that the jury followed the trial court's cautionary instruction, see State v. Grande, 169 Wis. 2d 422, 436, 485 N.W.2d 282 (Ct. App. 1992) ("The jury is presumed to follow all instructions given."), and conclude that the trial court responded reasonably to the jury's question by providing an accurate statement of the requested legal standard, which afforded a relevant benchmark to assist the jury's understanding of the legal concepts involved. See also State v. Dodson, 219 Wis. 2d 65, 86, 580 N.W.2d 181 (1998). ("The court's discretion should be exercised ... to assist the jury in making a reasonable analysis of the evidence.") (citations omitted). Thus, the trial court did not erroneously exercise its discretion in answering the jury's second question.

¶ 16. With respect to the trial court's response to the third jury question, Gordon challenges the legal soundness of the instruction itself. Gordon argues that "this re-instruction was fatally flawed because the court stated several times that the jury need only find that Gordon created 'a risk' rather than 'an unreasonable and substantial risk of death or great bodily harm.'"

¶ 17. However, Gordon failed to object to the re-instruction at trial. Gordon now claims that we may review the issue based on the supreme court's holding in Dodson, 219 Wis. 2d at 88. However, unlike Dodson, where the alleged inconsistency was not readily apparent, see id., here, the language of the re-instruction was clear and the alleged inconsistency was readily apparent. Therefore, we decline to review the matter pursuant to the Dodson rationale.

¶ 18. Gordon also argues that we may review the issue in the interest of justice pursuant to Wis. Stat. § 752.35. However, § 752.35 creates only a limited power of reversal requiring proof that: (1) the real controversy has not been fully tried, and (2) a miscarriage of justice has occurred. See State v. Ward, 228 Wis. 2d 301, 306, 596 N.W.2d 887 (Ct. App. 1999). Because Gordon fails to develop an argument establishing these elements, we decline to exercise our power of discretionary reversal under § 752.35. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (stating that we may decline to review an issue inadequately briefed).

¶ 19. Thus, our review is limited to whether the alleged instructional error warrants a new trial due to ineffective assistance of counsel based on defense counsel's failure to object. The familiar two-pronged test for ineffective assistance of counsel claims requires a defendant to prove: (1) deficient performance, and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bentley, 201 Wis. 2d 303, 311-12, 548 N.W.2d 50 (1996). To prove deficient performance, a defendant must show specific acts or omissions of counsel that were "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. To prove prejudice, a defendant must show that counsel's errors were so serious that the defendant was deprived of a fair trial and a reliable outcome. See id. at 687. In other words, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

¶ 20. Ineffective assistance of counsel claims present mixed questions of fact and law. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). A trial court's factual findings must be upheld unless they are clearly erroneous. State v. Harvey, 139 Wis. 2d 353, 376, 407 N.W.2d 235 (1987). Whether counsel's performance was deficient and, if so, whether the deficient performance prejudiced the defendant are questions of law, which we review de novo. Pitsch, 124 Wis. 2d at 634. The defendant has the burden of persuasion on both prongs of the test. See Strickland, 466 U.S. at 687.

¶ 21. Here, Gordon fails to demonstrate that he was deprived of a fair trial and a reliable outcome. First, the trial court's original instructions correctly outlined the two elements of the crime, including the requirement that "the defendant's conduct created an unreasonable and substantial risk of death or great bodily harm to another person." Second, the jury was also given the full instruction on second-degree recklessly endangering safety in writing for reference during its deliberations. Third, in the trial court's opening instructions at the outset of trial, the court outlined the elements of second-degree recklessly endangering safety, including "that the defendant's conduct created an unreasonable and substantial risk of death or great bodily harm to another person." Fourth, and finally, in responding to the jury's question, the court initially fully repeated the exact language as stated in the jury instruction. Although the court later referred to only "a risk," we are not persuaded that the jurors were misled and believed that they could ignore the prior instructions.

¶ 22. In light of the previous instructions, and given the totality of the re-instruction, we conclude that the trial court’s response to the jury's third question did not prejudice the defendant. See Foster, 191 Wis. 2d at 28 (”[W]e consider the challenged portion of the instructions in context with all the other instructions provided by the trial court."). Accordingly, we affirm Gordon's conviction for second-degree recklessly endangering safety.

B. A Machner hearing is required.

¶ 23. Gordon also seeks a new trial on the charge of disorderly conduct while armed. In closing argument, defense counsel stated:

But I want to be very clear there is no doubt, there is no question that at the moment when Officer Bongard shot Mr. Gordon, Mr. Gordon was subject to arrest for disorderly conduct while armed. Obviously running around the neighborhood with two knives is disorderly conduct and it is disorderly conduct while armed.
I'm asking you folks to acquit Mr. Gordon on the first [violation of a domestic abuse injunction] and the third [recklessly endangering safety] charges. Thank you.

Gordon asserts that these remarks amount to a guilty plea as to the disorderly conduct while armed charge, and concludes that such a waiver of his rights without his consent constitutes ineffective assistance of counsel.

¶ 24. The analysis of this issue raises two questions: (1) Was defense counsel's statement to the jury the equivalent of a guilty plea?; and (2) Did defense counsel have the power to offer such a "plea," which was inconsistent with Gordon's express plea of not guilty, without Gordon's consent?

¶ 25. The trial court found that defense counsel's remarks during closing argument amounted to a concession of Gordon's guilt:

The State contends that no concession .was made, but instead that trial counsel was cleverly distracting the jury from the charge at hand. I cannot make that finding, though. [Defense counsel] clearly suggested to the jury that the defendant was not contesting a conviction on Count 2 [disorderly conduct while armed] when he explicitly asked the jury to acquit Mr. Gordon on Counts 1 and 3 only.

We conclude that this finding is not clearly erroneous. See Harney, 139 Wis. 2d at 376 (stating that a trial court's factual findings must be upheld unless they are clearly erroneous). Thus, we agree with Gordon that defense counsel's statement to the jury was the functional equivalent of a guilty plea. We also agree with Gordon that defense counsel lacked the power to offer such a "plea" without his consent. See Brookhart v. Janis, 384 U.S. 1, 7 (1966) (holding that the constitutional rights of a defendant cannot be waived by counsel where the defendant has neither explicitly nor implicitly pled guilty).

¶ 26. Generally, once counsel is appointed, the day-to-day conduct of the defense rests with the attorney. Wainwright v. Sykes, 433 U.S. 72, 93 (1977) (Burger, C.J., concurring). This includes the responsibility of deciding if and when to object, which witnesses, if any, to call, and what defenses to develop. Id. Such decisions, as a practical matter, must be made without consulting the client. Id.

¶ 27. However, "[i]t is ... recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." Jones v. Barnes, 463 U.S. 745, 751 (1983). Thus, we conclude that a defense attorney may not admit his client's guilt, which is contrary to his client's plea of not guilty, unless the defendant unequivocally understands and consents to the admission. See Wiley v. Sowders, 647 F.2d 642, 649 (6th Cir. 1981). Logically, we also hold that an attorney may not stipulate to facts which amount to the "functional equivalent" of a guilty plea without the defendant's consent. See id.\ see also People v. Carter, 354 N.E.2d 482, 485 (Ill. App. Ct. 1976) (stating that counsel's closing argument that was tantamount to an admission of guilt cannot be overlooked as mere errors in judgment or trial strategy).

¶ 28. As pointed out by the State, a number of jurisdictions have reached the opposite conclusion, i.e., that the concession of a defendant's guilt may be an acceptable "trial tactic," even absent the defendant's consent. See United States v. Gomes, 177 F.3d 76, 83-84 (1st Cir. 1999); Underwood v. Clark, 939 F.2d 473, 474 (7th Cir. 1991); State v. Silva, 24 P.3d 477, 483-84 (Wash. Ct. App. 2001). While admitting that a defendant cannot be made to plead guilty against his or her wishes, however wise such a plea would be, these courts have concluded that a defense lawyer is not required to consult with a client on "tactical moves," including conceding a client's guilt without the client's consent when, on a particular count, the evidence of guilt is overwhelming. See Underwood, 939 F.2d at 474; see also Silva, 24 P.3d at 483 (concluding that it is not an unauthorized guilty plea if, in closing argument, defense counsel acknowledges what the course of the trial has made undeniable - that on a particular count the evidence of guilt is overwhelming). While the State correctly highlights this countervailing authority, we disagree that this line of cases validates Gordon's defense counsel's statement to the jury.

¶ 29. First, these cases rely on a thin distinction between a "guilty plea" and an "admission of guilt." See Gomes, 177 F.3d at 83-84 (holding that although defense counsel "flatly admitted [ ] guilt to a single [count] .. . [cjounsel's concession was not a guilty plea"); Underwood, 939 F.2d at 474 (holding that a lawyer who "conceded before the jury his client's guilt of criminal confinement with a deadly weapon .. . did not plead [his client] guilty; he merely acknowledged the weight of the evidence"); Silva, 24 P.3d at 484 (holding that "defense counsel's decision to admit her client's guilt. . . did not constitute an unauthorized guilty plea"). This group of cases constructs a fine line somewhere between "merely acknowledging the weight of the evidence" and simply declaring "my client has decided to plead guilty" - the former being acceptable and the latter constituting an unauthorized guilty plea if done without the client's consent. See Underwood, 939 F.2d at 474. Thus, for example, although the Seventh Circuit has concluded that a statement such as, "I think the evidence establishes the commission of that offense," id., does not cross the line, the Sixth Circuit has concluded that the statement, "They're going to the penitentiary. That part's easy because they're guilty," Wiley, 647 F.2d at 645, does.

¶ 30. While the Sixth, Seventh and First Circuits are split as to where the line of acceptable trial strategy stands, we conclude that the comments by Gordon's defense counsel charged past the point of merely acknowledging the weight of the evidence against his client. Rather, Gordon's counsel passed judgment on the guilt of his client in arguing: "Obviously running around the neighborhood with two knives is disorderly conduct and it is disorderly conduct while armed." This statement is clearly the functional equivalent of a guilty plea, in that defense counsel conceded the basis for Gordon's conviction on that charge. See Hawkins v. State, 26 Wis. 2d 443, 448, 132 N.W.2d 545 (1965) ("[T]he plea itself provides the basis for conviction."); see also Black's Law Dictionary 1171 (7th ed. 1999) (A "guilty plea" is a "formal admission in court of having committed the charged offense."). Unlike Underwood and its progeny, we conclude that a defense attorney need not say the magic words "my client has decided to plead guilty," Underwood, 939 F.2d at 474, before a court may conclude that defense counsel unconstitutionally waived a defendant's right to plead not guilty. See Brookhart, 384 U.S. at 7.

¶ 31. Additionally, unlike Underwood and its progeny, in the instant case, the trial court made a factual determination that defense counsel's statement "clearly suggested to the jury that the defendant was not contesting a conviction on Count 2 [disorderly conduct while armed]." We agree with the trial court that defense counsel's admission was the functional equivalent of a guilty plea. Because such a plea may not be entered without a client's consent, a hearing is necessary to determine whether consent was given. See State v. Curtis, 218 Wis. 2d 550, 554-55, 582 N.W.2d 409 (Ct. App. 1998) (holding that a hearing is a prerequisite to a claim of ineffective assistance of counsel). Accordingly, we remand the matter to the trial court so that it may conduct a Machner evidentiary hearing.

C. A jury instruction lacking an essential element of the crime establishes prejudice under Strickland.

¶ 32. Alternatively, Gordon contends that even if his defense counsel was not ineffective for admitting his guilt without his consent, his conviction for disorderly conduct while armed must be reversed due to an inadequate jury instruction. Specifically, Gordon argues that the jury instruction was defective and prejudicial because it failed to instruct the jury on the Peete nexus rule.

¶ 33. Wisconsin Stat. § 939.63 provides that the penalty for a crime may be increased if the crime was committed while possessing, using, or threatening to use a dangerous weapon. In Peete, the supreme court held that § 939.63 "requires a nexus between the predicate offense and weapon possession." State v. Peete, 185 Wis. 2d 4, 17, 517 N.W.2d 149 (1994). In explaining what constitutes an adequate nexus, the court stated that under § 939.63, "the state should be required to prove that the defendant possessed the weapon to facilitate commission of the predicate offense." Id. at 18.

¶ 34. A pattern jury instruction was prepared to encompass the holding in Peete. Wisconsin JI — Criminal 990 provides, in relevant part:

The (information) (complaint) alleges not only that the defendant committed the crime of_but also that he did so while (using) (threatening to use) (possessing) a dangerous weapon.
If you find the defendant guilty, you must answer the following question:
"Did the defendant commit the crime of _ while (using) (threatening to use) (possessing) a dangerous weapon?"
Before you may answer this question "yes," you must be satisfied beyond a reasonable doubt that the defendant committed the crime while [(using) (threatening to use) a dangerous weapon.] [possessing a dangerous weapon and possessed the dangerous weapon to facilitate the crime.]

(Footnotes omitted.) (Emphasis added.)

¶ 35. In the instant case, the trial court failed to instruct the jury on the nexus requirement. Instead, it stated:

Now count 2 alleges not only that the defendant committed the crime of disorderly conduct, but also that he did so while possessing, using or threatening to use a dangerous weapon. If you find the defendant guilty of the charge in count 2, you must answer the following question: Did the defendant commit the crime of disorderly conduct while possessing, using or threatening to use a dangerous weapon?
Before you may answer this question yes, you must be satisfied beyond a reasonable doubt that the defendant committed the crime of disorderly conduct while using, threatening to use or possessing a dangerous weapon.

¶ 36. Again, because defense counsel failed to object to this instruction at trial, Gordon must seek relief on the basis of ineffective assistance of counsel under Strickland, or in the interest of justice pursuant to Wis. Stat. § 752.35. After all, given Gordon's testimony, which appears to concede guilt to the charge of disorderly conduct while armed, reversal is certainly not required in the interest of justice. Therefore, we must determine whether defense counsel's failure to object to the jury instruction deprived Gordon of effective assistance of counsel.

¶ 37. As conceded by the State, "By the time of Gordon's trial in July and August of 2000, the 'nexus' requirement was well established." We agree and conclude that, based on Peete and Wis JI — Criminal 990, defense counsel's failure to object to the jury instruction, which lacked the Peete nexus requirement, constitutes deficient performance. See Strickland, 466 U.S. at 690 (holding that trial counsel's performance is deficient if his or her acts or omissions are outside the wide range of professionally competent assistance).

¶ 38. The State argues, however, that Gordon "cannot show prejudice under Strickland for lack of a 'nexus' instruction." We disagree. The State's argument is refuted by this court's holding in State v. Krueger, 2001 WI App 14, 240 Wis. 2d 644, 623 N.W.2d 211. In Kreuger, we concluded "that a jury instruction lacking an essential element of the crime is fundamentally unfair and establishes prejudice under the Strickland test." Id. at ¶ 15. Thus, because the nexus requirement is an essential element of a charge under Wis. Stat. § 939.63, prejudice is established. See Peete, 185 Wis. 2d at 19 ("The nexus required by the 'while possessing' language of sec. 939.63 is an element of sec. 939.63."); see also State v. Villarreal, 153 Wis. 2d 323, 328-29, 450 N.W.2d 519 (Ct. App. 1989) (concluding that the charge of use of a dangerous weapon under § 939.63 is an element of the crime charged). Therefore, Gordon's defense counsel was ineffective and Gordon is entitled to a new trial on the "while armed" portion of the disorderly conduct charge.

¶ 39. Accordingly, we reverse the "while armed" portion of the disorderly conduct charge. Because the jury separately found Gordon guilty of disorderly conduct, that portion of the verdict still stands. See Peete, 185 Wis. 2d at 23. We remand the cause to the circuit court with directions to enter a judgment of conviction against Gordon on the disorderly conduct charge without the "while armed" penalty enhancer. See id. This court also remands the matter to direct the circuit court to determine whether the State wishes a new trial solely on the issue of whether Gordon is guilty of the conduct prohibited by Wis. Stat. § 939.63. Id. Additionally, we direct the circuit court to vacate Gordon's sentence on the disorderly conduct while armed conviction and re-sentence him after the new trial; or, if the State elects not to conduct a new trial, to sentence him solely on the disorderly conduct conviction without the penalty enhancer. Id.

D. Gordon is entitled to a new trial on violating the domestic abuse injunction.

¶ 40. Gordon was charged with knowingly violating a domestic abuse injunction contrary to Wis. Stat. § 813.12. One element of violating a domestic' injunction requires the State to prove that "the defendant knew that the injunction had been issued and knew that his acts violated its terms." Wis JI — Criminal 2040. While the State attempted to prove this element by establishing that Gordon was properly served with a copy of the injunction, Gordon denied knowledge of service.

¶ 41. Under the public records hearsay exception, see Wis. Stat. § 908.03(8), the trial court admitted the injunction, the temporary restraining order, and proof of service for each, without testimony from the alleged servers or a records custodian. The trial court went even further in instructing the jury, stating: "You should ... accept as conclusively proven that that order was served on the defendant in person on November 2nd, 1998 by a Milwaukee County Deputy Sheriff." The court also referred to the temporary restraining order, stating: "This document was served in person by a Milwaukee County Deputy Sheriff on Mr. Gordon on October 23, 1998. And you should accept that fact as conclusively proven as well."

¶ 42. Gordon alleges two separate errors: (1) the trial court erroneously admitted the evidence under Wis. Stat. § 908.03(8), and (2) the trial court improperly directed a partial verdict in favor of the State by instructing the jury to accept the fact of service as conclusively proven. We agree.

¶ 43. First, the court mischaracterized these documents as "affidavits:"

In other words . .. Mr. Gordon's rights to confront the deputies who have sworn under oath that they served him is diminished.... Because I'm satisfied that these affidavits bear a very high indicia of reliability!!,] I believe that that resolves the confrontation clause concerns that I have.

However, these documents were not made under oath or attested to in any way; thus, they were not affidavits. See Black's Law Dictionary 58 (7th ed. 1999) (An "affidavit" is a "voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths."). Further, because the State did not enter these documents into evidence through a witness, such as the officer who allegedly served the defendant or the records custodian from the Milwaukee County Sheriffs Department, these documents were never properly authenticated. See State v. Garner, 54 Wis. 2d 100, 107, 194 N.W.2d 649 (1972) (stating that under the public records exception to the hearsay rule, custodianship is important, and a competent witness must provide the required identification of official records). Given the absence of proper authentication combined with the trial court's mistaken belief that these documents were affidavits, we conclude that the trial court erroneously exercised its discretion in admitting theses documents into evidence pursuant to Wis. Stat. § 908.03(8). See Daniel-Nordin v. Nordin, 173 Wis. 2d 635, 654, 495 N.W.2d 318 (1993) ("A circuit court erroneously exercises its discretion when it makes a mistake with respect to the facts upon which its decision is based.").

¶ 44. Additionally, it is well-settled that "[t]he Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged." United States v. Gaudin, 515 U.S. 506, 522-23 (1995); see also State v. Perkins, 2001 WI 46, ¶ 52, 243 Wis. 2d 141, 626 N.W.2d 762 (Wilcox, J., concurring) (stating that the same is true under the Wisconsin Constitution). "The right includes, of course, as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of 'guilty.'" Sullivan v. Louisiana, 508 U.S. 275, 277 (1993).

¶ 45. "Thus, although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he [or she] may not direct a verdict for the State, no matter how overwhelming the evidence." Id. Therefore, because even partially directing a verdict against a defendant is reversible error per se, see, e.g., Villarreal, 153 Wis. 2d at 332-33, by directing the jury to accept as conclusively proven that Gordon was served with the order, the trial court erroneously removed a factual issue from the jury's consideration. For the foregoing reasons, we reverse the judgment convicting Gordon of knowingly violating a domestic abuse injunction and remand the matter to the trial court for a new trial on this charge.

E. The trial court erred in assessing costs against Gordon.

¶ 46. At sentencing, the State requested that Gordon be assessed $342, the costs attributable to transporting Officer Amberg, one of the State's witnesses who was one of the officers on the scene at the incident, back from vacation to testify, and then back to his vacation after his testimony. Defense counsel objected stating: "I don't think police officer time or overtime or travel costs are compens[a]ble." The trial court awarded the costs, stating:

I think in order to have a necessary witness here on a last day of a period of which Mr. Gordon has requested a speedy trial are appropriate costs for the state to impose on the defendant.
All of these costs and surcharges must be paid in full on or before December 1st, 2002.

¶ 47. Gordon argues that the trial court erred in awarding these costs because: (1) it is improper to penalize an accused for asserting his constitutionally guaranteed right to a speedy trial; and (2) the trial court erroneously exercised its discretion in awarding these costs based on its mistaken belief that Gordon was responsible for the adjournment that resulted in the trial conflicting with the officer's vacation schedule.

¶ 48. Because Gordon failed to object on the grounds that the costs were designed to penalize the exercise of his speedy trial rights, he waived any speedy trial based objection. See State v. Peters, 166 Wis. 2d 168, 174, 479 N.W.2d 198 (Ct. App. 1991) ("To be sufficiently specific, an objection must reasonably advise the court of the basis for the objection."). Additionally, Gordon did not dispute that the trial court had the authority to assess these costs pursuant to Wis. Stat. § 973.06. Therefore, we must only determine whether the trial court erroneously exercised its discretion in assessing these costs based on its conclusion that Gordon was responsible for the scheduling conflict. See State v. Gerard, 57 Wis. 2d 611, 626-27, 205 N.W.2d 374 (1973) (concluding that the decision whether to assess costs as part of a defendant's sentence is addressed to the trial court discretion).

¶ 49. Generally, costs are penal in nature. See State ex rel. Korne v. Wolke, 79 Wis. 2d 22, 26, 255 N.W.2d 446 (1977). The trial court implicitly blamed the timing of Gordon's speedy trial demand for the fact that the trial was scheduled during Officer Amberg's vacation. However, as conceded by the State, "[a]lthough the new trial date happened to require, returning Officer Amberg from vacation, this happenstance was attributable to various circumstances for which responsibility among the court and parties was mutual." Why then should Gordon bear the burden of this mutual responsibility?

¶ 50. Moreover, the record indicates that the scheduling conflict was actually primarily attributable to the State. Gordon made his speedy trial demand on May 1, 2000, and trial was set for July 19, 2000. On July 19, 2000, the State informed the court:

I'm not prepared to proceed because of problems with one of our witnesses who is handicapped and confined to a wheelchair... . She indicated that she has no way of getting down here because of her handicap condition and we are unable to secure the specialized transportation she needs to be in court until tomorrow at 8:30 and under those circumstances I guess we're not prepared to proceed right at this moment.
The defendant has a speedy trial demand filed May 1st and I calculate that would expire on the weekend of the 29th and 30th of July. The first operative available day of regular court business would be July 31st.

Over Gordon's objection, the trial court scheduled a new trial for July 31, 2000.

¶ 51. Although this new trial date conflicted with Officer Amberg's vacation schedule, we are not persuaded that this conflict was attributable to Gordon. Accordingly, we vacate the portion of the judgment of conviction assessing these costs against the defendant.

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

FINE, J.

(dissenting).

¶ 52. I join in all of the Majority's opinion except Part II.C., where the Majority holds that the failure to instruct the jury that the crime of disorderly conduct while armed requires a nexus between the "disorderly conduct" and the "while armed" is ipso facto prejudicial. I disagree.

¶ 53. The Majority relies on State v. Krueger, 2001 WI App 14, 240 Wis. 2d 644, 623 N.W.2d 211, for imposition of an ¿pso-/acío~prejudicialper se rule. But in Krueger, the trial court did not instruct the jury that the defendant could not be found guilty of attempting to have sexual contact with a person under the age of thirteen years unless the purpose of the touching was for sexual arousal or gratification, or for degrading or sexually humiliating the victim. Id., 2001 WI App 14 at ¶ 2. Although Krueger does not tell us what the facts were in that case, here there can be no doubt but that there was the requisite nexus between the knives and Gordon's conduct. Thus, Gordon has not satisfied his burden to show that his lawyer's failure to request a nexus instruction was prejudicial.

¶ 54. I do not read Krueger as establishing a per se rule. Accordingly, I respectfully dissent from Part II.C. of the Majority's opinion.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

        State v. Peete, 185 Wis. 2d 4, 517 N.W.2d 149 (1994).

       Wisconsin JI — CRIMINAL 1347 states, in relevant part:
      The second element requires that the defendant endangered the safety of another by criminally reckless conduct. This requires that the defendant's conduct created an unreasonable and substantial risk of death or great bodily harm to another person and that the defendant was aware that his conduct created such a risk.
      (Footnotes omitted.)

       However, this court cautions that instructing on an uncharged offense is appropriate only under very rare circumstances. See, e.g., State v. Kramar, 149 Wis. 2d 767, 792, 440 N.W.2d 317 (1989) ("A circuit court has the duty to accurately give to the jury the law of whatever degree of felonious homicide the evidence tends to prove and no other.").

       In Dodson, the supreme court reviewed a modified jury instruction, even though the defendant failed to object at trial. State v. Dodson, 219 Wis. 2d 65, 88, 580 N.W.2d 181 (1998). The court stated: "We understand how in the heat of trial no one, the State, the defendant, nor the court, could see the internal inconsistency in the instruction given." Id.

       Wisconsin Stat. § 752.35 provides:
      752.35 Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.

       Because we conclude that Gordon was not prejudiced by trial counsel's failure to object to the re-instruction, we need not decide whether counsel's performance was deficient. See Strickland v. Washington, 466 U.S. 668, 697 (1984) ("[T]here is no reason for a court deciding an ineffective assistance claim to ... address both components of the inquiry if the defendant makes an insufficient showing on one.").

       During a Machner hearing, trial counsel testifies about the reasons for the conduct that is attacked as deficient performance and, from that testimony, the reviewing court determines whether trial counsel's actions were the result of incompetence or deliberate trial strategy. See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

       Wisconsin Stat. § 939.63 provides:
      939.63 Penalties; use of a dangerous weapon. (1) (a) If a person commits a crime while possessing, using or threatening to use a dangerous weapon, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:
      1. The maximum term of imprisonment for a misdemeanor may be increased by not more than 6 months.

       Although the dissent "do[es] not read Krueger as establishing a per se rule," in Krueger, we concluded that "if the circuit court fails to instruct a jury about an essential element of the crime and the jury must find that element beyond a reasonable doubt, there is an automatic reversal of the verdict." State v. Krueger, 2001 WI App 14, ¶ 12, 240 Wis. 2d 644, 623 N.W.2d 211 (emphasis added) (citing State v. Avila, 192 Wis. 2d 870, 893a, 532 N.W.2d 423 (1995)).

       The special verdict form asked separately whether Gordon was guilty of disorderly conduct and, if so, whether he committed the crime while armed.

       However, after conducting a Machner hearing as required by part B. of our decision, if the trial court concludes that defense counsel was ineffective for offering the equivalent of a guilty plea without Gordon's consent, then the disorderly conduct conviction will also be vacated and the State would have to retry the entire charge of disorderly conduct while armed.

       Because the trial court did not apportion the sentence for his disorderly conduct while armed conviction between the predicate offense and the Wis. Stat. § 939.63 enhancer, the circuit court's sentence on the disorderly conduct conviction cannot stand. See State v. Peete, 185 Wis. 2d 4, 23-24, 24 n.11, 517 N.W.2d 149 (1994). Therefore, the circuit court may not impose a sentence for the predicate offense until either a jury has made a finding as to Gordon's guilt under § 939.63, or the State elects to dismiss the "while armed" enhancer. Id. at 24 n.ll.


source: Caselaw Access Project

author: SNYDER, J.

license: Public Domain

text:
    State of Wisconsin ex rel. Edwin C. West, Petitioner-Appellant, v. Byran Bartow, Warden, Wisconsin Resource Center, Respondent-Respondent.
    Court of Appeals

      No. 01-0962.

      Submitted on briefs December 13, 2001.

    Decided January 16, 2002.

    2002 WI App 42
    (Also reported in 642 N.W.2d 233.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Len Kachinsky of Kachinsky & Petit Law Offices of Neenah.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. Edwin C. West appeals from an order transferring venue of his habeas corpus petition from Winnebago county to Milwaukee county. West argues that the trial court erred in transferring venue because his habeas corpus petition was properly venued in Winnebago county pursuant to Wis. Stat. § 801.50(4)(b) (1999-2000). While we agree that this matter was properly venued in Winnebago county, we conclude that the trial court had the discretion to transfer this matter to Milwaukee county pursuant to Wis. Stat. § 801.52. We therefore affirm the order of the trial court.

FACTS

¶ 2. On March 6, 2001, West filed a petition for habeas corpus in Winnebago county. West had been committed to the Wisconsin Resource Center, located in Winnebago county, under Wis. Stat. ch. 980 after proceedings in Milwaukee county. In his habeas petition, West alleged that he was being unlawfully restrained of his liberty because he was unlawfully committed under ch. 980.

¶ 3. In response to the petition, Byran Bartow, Warden of the Wisconsin Resource Center, filed a motion for change of venue to Milwaukee county. On March 30, 2001, a hearing was held on this motion wherein the trial court granted Bartow's motion for a change of venue to Milwaukee county. On April 9, 2001, West filed a petition for leave to appeal this order, which we granted on May 9, 2001.

DISCUSSION

¶ 4. Change of venue in civil cases is governed by statute. Cent. Auto Co. v. Reichert, 87 Wis. 2d 9, 15, 273 N.W.2d 360 (Ct. App. 1978). The granting of a change of venue is discretionary with the trial court and generally will not be disturbed on appeal unless it appears that the trial court misused its discretion. Id. However, here we must review the trial court's construction of the venue statutes, a matter of statutory interpretation. Statutory interpretation is a question of law that we review de novo. State ex rel. Cramer v. Court of Appeals, 2000 WI 86, ¶ 17, 236 Wis. 2d 473, 613 N.W.2d 591, reconsideration denied, 2000 WI 121, 239 Wis. 2d 314, 619 N.W.2d 96 (Wis. Sept. 14, 2000) (No. 99-1089-OA).

¶ 5. West argues that the trial court erred in transferring venue to Milwaukee county because venue was proper in Winnebago county pursuant to Wis. Stat. § 801.50(4)(b). We agree that venue was proper in Winnebago county under § 801.50(4) (b) and that the trial court mistakenly relied upon § 801.50(4)(a) in determining that Milwaukee county was the appropriate venue. Section 801.50(4) addresses venue in civil proceedings and reads:

Venue of an action seeking a remedy available by habeas corpus shall be in the county:
(a) Where the plaintiff was convicted or sentenced if the action seeks relief from a judgment of conviction or sentence under which the plaintiffs liberty is restrained.
(b) Where the liberty of the plaintiff is restrained if the action seeks relief concerning any other matter relating to a restraint on the liberty of the plaintiff.

¶ 6. The trial court transferred venue of this habeas corpus civil proceeding pursuant to Wis. Stat. § 801.50(4)(a). However, West's habeas petition did not seek relief from a judgment of conviction or sentence under which his liberty was restrained. West's habeas petition challenged his Wis. Stat. ch. 980 civil commitment. The State concedes that the plain language of § 801.50(4)(a) does not provide for a venue change of a habeas action filed by a ch. 980 patient challenging his or her ch. 980 commitment and therefore the trial court's reliance on § 801.50(4)(a) was incorrect.

¶ 7. However, it is well established that if a trial court reaches the proper result for the wrong reason, it will be affirmed. State v. Holt, 128 Wis. 2d 110, 124, 382 N.W.2d 679 (Ct. App. 1985). Wisconsin Stat. § 801.52 allows for a discretionary change of venue: "The court may at any time, upon its own motion, the motion of a party or the stipulation of the parties, change the venue to any county in the interest of justice or for the convenience of the parties or witnesses."

¶ 8. West argues that Wis. Stat. § 801.52 does not apply here because the State never asked the trial court to consider a discretionary change of venue and the trial court never considered the merits of a discretionary change of venue. West ignores that it was he who introduced § 801.52 into this debate; his response to the change of venue motion specifically referenced § 801.52.

¶ 9. The trial court clearly stated in its findings that Milwaukee county was the most convenient forum in which to hear this petition:

This case was a Milwaukee County case from start to finish. It was a result of an order from a Milwaukee County judge which committed Mr. West to the setting that he now finds himself in. The attack that's being made with the habeas petition is an attack on the underlying judgment from Milwaukee County ... and that the proper place of venue for this action and this attack would be Milwaukee County. They have all the files, they have all of the documents regarding the judgment that's being attacked by Mr. West, so it would appear that - to me anyway that that would be the most appropriate venue for this to be heard.

¶ 10. The trial court obviously determined that the interests of justice and the convenience of the parties or witnesses necessitated a change of venue to Milwaukee county. The trial court's failure to use the "magic words" of Wis. Stat. § 801.52 does not amount to reversible error. Michael A.P. v. Solsrud, 178 Wis. 2d 137, 151, 502 N.W.2d 918 (Ct. App. 1993). While the trial court did not specifically refer to § 801.52, the trial court's reasoning demonstrates that it exercised its discretion and considered the standard set forth in § 801.52.

CONCLUSION

¶ 11. We agree that this action was properly ven-ued in Winnebago county pursuant to Wis. Stat. § 801.50(4)(b) and the trial court's reliance on § 801.50(4)(a) as justification for a transfer of venue was incorrect. However, we conclude that the trial court appropriately exercised its discretion under Wis. Stat. § 801.52 in transferring this matter to Milwaukee county. We therefore affirm the order of the trial court.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.


author: LUNDSTEN, J.

text:
    In re the Paternity of Roger D. H.: Roger D. H., by his Guardian ad Litem, Rebecca M. Richards-Bria, Appellant, Patricia C., Petitioner, v. Virginia O., Respondent-Respondent.
    Court of Appeals

      No. 00-3333.

      Submitted on briefs July 9, 2001.

    Decided January 17, 2002.

    2002 WI App 35
    (Also reported in 641 N.W.2d 440.)

      On behalf of the appellant, the cause was submitted on the briefs of Rebecca M. Richards-Bria of Curran, Hollenbeck & Orton, S.C., Mauston.
    On behalf of the petitioner, the cause was submitted on the brief of Patricia C.

      On behalf of the respondent-respondent, the cause was submitted on the brief of Daniel M. Berkos of Berkos Law Office, Mauston.
    Before Vergeront, EJ., Deininger and Lundsten, JJ.
   LUNDSTEN, J.

¶ 1. Roger D.H., by his guardian ad litem, appeals an order of the circuit court vacating a prior order establishing visitation rights on behalf of Roger D.H.'s grandmother. The parties raise the following issues: (1) whether the circuit court erred when it vacated a visitation order providing for grandparent visitation because the court believed it could not interfere with the mother's decision-making authority "absent a finding that [she] is an unfit parent"; and (2) whether the circuit court was prohibited from granting visitation to the grandmother because Wis. Stat. § 767.245(3) (1997-98) is facially unconstitutional in that it does not require courts to give presumptive weight to a fit parent's decision regarding non-parental visitation.

¶ 2. We conclude that the circuit court erred when it determined that it could not grant visitation rights to the grandmother absent a showing of parental unfitness. We reject the argument that Wis. Stat. § 767.245(3) is facially unconstitutional. We reverse and remand for further proceedings.

Background

¶ 3. Roger D.H. was born July 27, 1986. Virginia O. is Roger's biological mother. She did not marry Roger's biological father. In April of 1997, Roger D.H. was the subject of a paternity action. Roger's mother has sole custody. Roger's father is not a party to this action and he had no visitation rights at the time this action was pursued before the circuit court.

¶ 4. Patricia C. is the paternal grandmother of Roger D.H. In 1996, Roger's mother and his paternal grandmother entered into a court-approved stipulation providing the grandmother with visitation rights. An order was entered in August of 1996 setting forth the stipulation.

¶ 5. In 1999, the grandmother filed a motion to compel compliance with the 1996 order, asserting that the mother had denied her visitation on at least seven occasions. Thereafter, the mother filed a motion to "modify" the stipulation, seeking in actuality to vacate the stipulation. In an attached affidavit, the mother asserted there had been a substantial change in circumstances and grandparent visitation was no longer in Roger D.H.'s best interest. A guardian ad litem was appointed to represent Roger D.H.

¶ 6. At some point during these proceedings, the parties became aware of the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57 (2000). Over the course of two hearings, the parties presented argument on the effect of Troxel on Wis. Stat. § 767.245(3). The mother argued that Troxel requires some showing of unfitness before a court may interfere with a parent's decision on visitation issues. The mother asked the circuit court to invalidate the 1996 stipulation and order.

¶ 7. The circuit court issued an order on November 21, 2000, concluding that both Wis. Stat. § 767.245(3) and the criteria set forth in Troxel were applicable to this case. The circuit court concluded that as a fit parent, the mother has the right to make decisions concerning the best interest of her child and, "absent a finding that [she] is an unfit parent," the court could not interfere with her decision regarding visitation. Because the court believed the 1996 stipulation and order interfered with the mother's decision-making rights, the court vacated the order. Roger D.H.'s guardian ad litem appeals.

Discussion

¶ 8. The paternal grandmother in this case is seeking to maintain visitation rights with Roger D.H., a minor whose mother opposes the visitation. Roger's guardian ad litem has determined that it is in Roger's best interest to maintain visitation with his grandmother and, therefore, she has appealed the circuit court decision in favor of the mother. As described above, Roger's grandmother participated in the trial court proceedings and sent a letter to this court opposing the trial court order, but she did not file a notice of appeal. Although it is the guardian ad litem's brief that we consider on appeal, we think clarity will be served if we refer to the arguments of the guardian as those of the grandmother.

A. Standard of Review

¶ 9. The decision whether to grant or deny visitation is within the circuit court's discretion. See Biel v. Biel, 114 Wis. 2d 191, 194, 336 N.W.2d 404 (Ct. App. 1983). We will affirm a circuit court's discretionary determination so long as it examines the relevant facts, applies the proper legal standard, and uses a demonstrated rational process to reach a conclusion that a reasonable judge could reach. F.R. v. T.B., 225 Wis. 2d 628, 637, 593 N.W.2d 840 (Ct. App. 1999). Additionally, we will uphold the circuit court's discretionary determination if we can independently conclude that the facts of record applied to the proper legal standards support the court's decision. See Andrew J.N. v. Wendy L.D., 174 Wis. 2d 745, 767, 498 N.W.2d 235 (1993). When a party contends that the circuit court erroneously exercised its discretion because it applied an incorrect legal standard, we review that issue de novo. F.R., 225 Wis. 2d at 637.

B. Unfitness Requirement

¶ 10. The grandmother argues that the circuit court improperly read into Wis. Stat. § 767.245(3) a requirement that a court find a custodial parent unfit before the court can interfere with the parent's decision regarding visitation. We agree.

¶ 11. In its November 21, 2000, order, the circuit court concluded, as a matter of law, that it did not have authority to interfere with the mother's right to make decisions concerning the best interest of her child, absent a finding that the mother is an unfit parent. The court found that the mother is a fit parent and concluded that the visitation stipulation interfered with her right to make visitation decisions.

¶ 12. The circuit court applied an incorrect legal standard. Nothing in Wis. Stat. § 767.245 requires a showing of parental unfitness before a court may override a parent's decision regarding grandparent visitation, nor do we find any case law from this state holding as much. The circuit court may have believed that the United States Supreme Court imposed such a requirement in Troxel. If so, we disagree. There is no suggestion in Troxel that a court may only interfere with a parent's decision regarding visitation if the parent is shown to be unfit. Rather, the Troxel Court's parental fitness discussion is in the context of explaining that there is a presumption that fit parents act in the best interest of their children. See Troxel, 530 U.S. at 68.

C. Constitutional Challenge

¶ 13. Roger D.H.'s mother suggests an alternative ground on which to affirm the circuit court order. She argues that Troxel "makes it clear that a statute that fails to show deference to a parent's decision-making does not meet the constitutional safeguards of the Fourteenth Amendment." Her argument amounts to an assertion that Wis. Stat. § 767.245 is facially unconstitutional under Troxel because the statute does not require that courts give presumptive weight to a fit parent's decision regarding non-parental visitation and, therefore, the circuit court was without statutory authority to grant visitation to the grandmother. However, while Troxel does require that courts accord a presumption that fit parents act in the best interests of their children, it provides no support for the mother's claim that § 767.245 is facially unconstitutional. To the contrary, Troxel strongly suggests that we may read such a requirement into the statute to save it from facial invalidation.

¶ 14. The Washington statute at issue in Troxel is exceedingly broad. It provides:

Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.

Wash. Rev. Code § 26.10.160(3) (1994); see Troxel, 530 U.S. at 61. Acting under the authority provided by this statute, a Washington state trial court granted more visitation than the mother desired to the paternal grandparents of a child born out of wedlock.

¶ 15. In analyzing the case, the Troxel Court began by observing that the Due Process Clause of the Fourteenth Amendment "protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Id. at 66. The Court went on to state: "there is a presumption that fit parents act in the best interests of their children." Id. at 68. The Court explained, "[t]he problem here is not that the Washington [trial court] intervened, but that when it did so, it gave no special weight at all to [the mother's] determination of her daughters' best interests." Id. at 69. The Troxel Court said:

[The Washington statute] contains no requirement that a court accord the parent's decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent's estimation of the child's best interests, the judge's view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests.

Id. at 67.

¶ 16. Despite these observations and conclusions, and despite the fact that the Washington statute contained no language suggesting that courts should give weight to a fit parent's decision, the United States Supreme Court did not find the Washington statute facially unconstitutional. Id. at 75. Instead, the Troxel Court opted to find the particular application of the statute unconstitutional because the trial court had acted on "slender findings" and because it used an impermissible presumption. Id. at 72-73. Rather than give the required presumptive weight to the parent's decision, the Washington trial court improperly presumed that grandparent visitation was in the best interest of the children. Id.

¶ 17. The Troxel Court noted that the Washington state courts could have given the broad language of the statute a "narrower reading" comporting with the "special weight" which must be accorded decision-making by fit parents, but "declined to do so." Id. at 67-69. Also, by way of explaining its "as applied" holding, the Court said: "Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter." Id. at 73.

¶ 18. We glean from Troxel two propositions relevant to the issue before us. First, due process requires that courts apply a presumption that a fit parent's decision regarding non-parental visitation is in the best interest of the child. Second, a state court may read this requirement into a non-parental visitation statute, even when the statute is silent on the topic.

¶ 19. Accordingly, we hold that when applying Wis. Stat. § 767.245(3), circuit courts must apply the presumption that a fit parent's decision regarding grandparent visitation is in the best interest of the child. At the same time, we observe that this is only a presumption and the circuit court is still obligated to make its own assessment of the best interest of the child. See § 767.245(3)(f). What the Due Process Clause does not tolerate is a court giving no "special weight" to a fit parent's determination, but instead basing its decision on "mere disagreement" with the parent. Troxel, 530 U.S. at 68-69.

¶ 20. The approach we use here is consistent with the analysis in Troxel and implicitly approved of in that decision. We acknowledge that this approach is seemingly at odds with some decisions of our state supreme court. On occasion, our supreme court has declined to read a requirement into a statute to save it from facial constitutional invalidity absent either (1) guidance from prior judicial construction of analogous language or (2) the availability of language in the text of the statute supporting the requirements. See, e.g., State v. Stevenson, 2000 WI 71, ¶¶ 28-34, 236 Wis. 2d 86, 613 N.W.2d 90. However, at other times our supreme court has, consistent with our approach here, read in requirements in the absence of prior authority or textual ; support. See, e.g., State ex rel. Deisinger v. Treffert, 85 Wis. 2d 257, 267-68, 270 N.W.2d 402 (1978) (in the absence of textual support, court read a release requirement into a statute specifying the maximum confinement of persons deemed incompetent to stand trial); Huebner v. State, 33 Wis. 2d 505, 528-29, 147 N.W.2d 646 (1967) (in the absence of textual support, court read a hearing requirement into the Sex Crimes Act).

¶ 21. Because we conclude that the circuit court applied an erroneous legal standard, we reverse and remand for further proceedings. On remand, the circuit court should reconsider the grandmother's request for visitation under Wis. Stat. § 767.245(3), giving presumptive weight to the mother's decision regarding non-parental visitation.

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

       The grandmother, Patricia C., did not file a notice of appeal in this case. She did, however, write a letter to this court explaining why she believed the circuit court's ruling was incorrect. In a prior order, we mistakenly indicated that the grandmother believed the circuit court's ruling was correct, rather than incorrect. The grandmother was subsequently listed as a respondent on appeal even though her interests are not adverse to the appellant's. We therefore amend the caption in this case to correctly reflect the parties' respective positions on appeal.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       Wisconsin Stat. § 767.245(3) reads as follows:
      The court may grant reasonable visitation rights, with respect to a child, to a grandparent of the child if the child's parents have notice of the hearing and the court determines all of the following:
      (a) The child is a nonmarital child whose parents have not subsequently married each other.
      (b) Except as provided in sub. (4), the paternity of the child has been determined under the laws of this state or another jurisdiction if the grandparent filing the petition is a parent of the child's father.
      (c) The child has not been adopted.
      (d) The grandparent has maintained a relationship with the child or has attempted to maintain a relationship with the child but has been prevented from doing so by a parent who has legal custody of the child.
      (e) The grandparent is not likely to act in a manner that is contrary to decisions that are made by a parent who has legal custody of the child and that are related to the child's physical, emotional, educational or spiritual welfare.
      (f) The visitation is in the best interest of the child.
      Roger D.H. is a nonmarital child who has not been adopted and whose paternity has been established. Thus, we agree with the circuit court that subsection (3) of § 767.245 is applicable to this case.

       While we reject the mother's constitutional challenge to the statute on the merits of that argument, we note that the record does not show that the mother gave notice to the attorney general, and neither party raises notice as an issue. See Wis. Stat. § 806.04(11). Nevertheless, the mother's failure to notify the attorney general does not create a jurisdictional bar to our review, because this proceeding is not an action for declaratory judgment. See W.W.W. v. M.C.S., 161 Wis. 2d 1015, 1025 n.6, 468 N.W.2d 719 (1991). The rule requiring notice to the attorney general when a party is challenging the constitutionality of a statute was designed to allow the state to defend the validity of its statutes. William B. Tanner Co. v. Estate of Fessler, 100 Wis. 2d 437, 444, 302 N.W.2d 414 (1981). We invited the attorney general to submit a brief, recognizing that the state not only has an interest in having its statutes upheld against constitutional challenge, but also has an interest in the manner in which a statute is upheld. However, the attorney general elected not to submit a brief.

       In addition, although not in the context of a constitutional challenge, the supreme court has interpreted Wis. Stat. § 767.245 to require both an underlying action affecting the family and a nonintact family before a party has standing to seek visitation. See, e.g., Cox v. Williams, 177 Wis. 2d 433, 439, 502 N.W.2d 128 (1993) (citing Van Cleve v. Hemminger, 141 Wis. 2d 543, 549, 415 N.W.2d 571 (Ct. App. 1987)). This is true despite the fact that § 767.245 does not explicitly require the presence of either factor before a circuit court may determine whether visitation is in the hest interest of the child. Wis. Stat. § 767.245; see also Holtzman v. Knott, 193 Wis. 2d 649, 666-67, 533 N.W.2d 419 (1995). These requirements have been read into § 767.245 based on the court's assumption that the legislature did not intend the visitation provision to reach into intact families and override parental determinations with respect to visitation. See id. at 675.


author: PER CURIAM.

text:
    No. 00-3490-CR State of Wisconsin, Plaintiff-Respondent, v. Marvin C. Seay, Defendant-Appellant. No. 00-3530 State of Wisconsin, Plaintiff-Respondent, v. Christopher Tillman, Defendant-Appellant.
    Court of Appeals

      Nos. 00-3490-CR, 00-3530.

      Submitted on jurisdictional memo-randa June 4, 2001.

    Decided January 23, 2002.

    2002 WI App 37
    (Also reported in 641 N.W.2d 437.)

      On behalf of the defendants-appellants, the cause was submitted on the memorandum of Christopher Tillman, pro se.

      On behalf of the plaintiff-respondent, the cause was submitted on the memoranda of Susan M. Crawford and Maura FJ Whelan, assistant attorneys general, and James E. Doyle, attorney general.
    Before Brown, Anderson and Snyder, JJ.
   PER CURIAM.

¶ 1. In these two appeals, the appellants filed unsigned notices of appeal with the clerks of the circuit courts. The issue is whether the failure to sign the notice of appeal deprives this court of appellate jurisdiction. In accord with the recent United States Supreme Court ruling in Becker v. Montgomery, 532 U.S. 757 (2001), we conclude that a person's failure to sign the notice of appeal does not deprive this court of appellate jurisdiction if the omission is corrected once it is called to the appellant's attention.

¶ 2. Both appellants, Marvin Seay (No. 00-3490-CR) and Christopher Tillman (No. 00-3530) are incarcerated and seek review of circuit court orders denying Wis. Stat. § 974.06 (1999-2000) motions for postconviction relief. Both men are proceeding pro se and neither signed the notice of appeal that was filed in the circuit court. In each appeal, this court issued an order shortly after the appellate record was filed. Each order noted that the notice of appeal was not signed, and the court ordered the parties to file memoranda addressing the effect, if any, of the lack of a signature on this court's jurisdiction. Tillman filed a response; Seay did not.

¶ 3. In both cases, the State argues that the appeals must be dismissed, relying on Jadair Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 562 N.W.2d 401 (1997). The issue before the court in Jadair was "whether a notice of appeal is fatally defective when it is signed and filed by a nonlawyer on behalf of a corporation." Id. at 194. The court first determined that a notice of appeal was a "paper" under Wis. Stat. § 801.14 that must be signed pursuant to Wis. Stat. § 802.01(2)(d). Jadair, 209 Wis. 2d at 200. The court then held that when a person signs a notice of appeal, he or she is "rendering a legal service" and therefore, a nonlawyer who signs a notice of appeal on behalf of a corporation is engaging in the unauthorized practice of law. Id. at 204. Because the proscription against the unauthorized practice of law is designed to protect the public, the court concluded that the defect was fundamental and dismissed the appeal, regardless of the lack of prejudice to the respondent. Id. at 210-13.

¶ 4. Under Wis. Stat. § 802.05(l)(a), a party's signature on a paper

constitutes a certificate that the... party has read the .. . paper; that to the best of the . . . party's knowledge, information and belief, formed after reasonable inquiry, the . .. paper is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and ... is not used for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

The court in Jadair noted that § 802.05 also protected the public from the unauthorized practice of law by "placing] a professional obligation on the attorney, as an officer of the court, to satisfy himself or herself as to the legal grounds for the action, defense or motion." Jadair, 209 Wis. 2d at 210-11.

¶ 5. While the protections afforded by Wis. Stat. § 802.05 — a certification that the party has read the notice of appeal and believes that the appeal is well-grounded in fact and taken in good faith — apply with equal force to these pro se appeals, it is important to note that § 802.05 also expressly permits a party to sign a paper after it is filed with the court: "If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant." Sec. 802.05(l)(a). Thus, the express language of the statute suggests that a failure to sign a notice of appeal can be corrected and that the failure to sign does not compel the immediate dismissal of the appeal.

¶ 6. Jadair stands for the proposition that a corporate appellant must appear by counsel at all phases of an appeal, including the act of filing the notice of appeal. The court's holding rests primarily on the need to protect the public from the unauthorized practice of law. Jadair, 209 Wis. 2d at 210-12. Because both Seay and Tillman seek to represent themselves, that concern is absent from these cases.

¶ 7. In Becker, the United States Supreme Court addressed the identical issue now before this court, albeit under the Federal Rules of Procedure: "[W]hen a party files a timely notice of appeal.. . does the failure to sign the notice of appeal require the court of appeals to dismiss the appeal?" Becker, 532 U.S. at 760. The Court held that Rule 11(a) of the Federal Rules of Civil Procedure required that a notice of appeal, like other papers filed in court, be signed by counsel or, if the party is unrepresented, by the party. Becker, 532 U.S. at 763. The Court noted, however, that Rule 11(a) "goes on to provide in its final sentence that 'omission of the signature1 may be 'corrected promptly after being called to the attention of the attorney or party.'" Becker, 532 U.S. at 764. The Court wrote that the "signature requirement and the cure for an initial failure to meet the requirement go hand in hand. The remedy for a signature omission, in other words, is part and parcel of the requirement itself." Id. at 765.

¶ 8. The Court also considered Federal Rules of Appellate Procedure 3(c)(4), which provides that "[a]n appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice." Becker, 532 U.S. at 767. The Court concluded that the absence of a signature on a notice of appeal filed by a pro se appellant does not compel dismissal of the appeal. While a notice of appeal must be signed, "if the notice is timely filed and adequate in other respects, jurisdiction will vest in the court of appeals [and] the case may proceed so long as the appellant promptly supplies the signature once the omission is called to his attention." Id. at 760.

¶ 9. For these purposes, Wis. Stat. § 802.05(1) is identical to Rule 11(a) of the Federal Rules of Civil Procedure. And, like Federal Rules of Appellate Procedure 3(c)(4), Wis. Stat. § 807.07(1) provides that "[i]f it appears . . . that [an] appeal was attempted in good faith the court may allow any defect or omission in the appeal papers to be supplied, either with or without terms, and with the same effect as if the appeal had been originally properly taken." See also Northridge Bank v. Cmty. Eye Care Ctr., Inc., 94 Wis. 2d 201, 203, 287 N.W.2d 810 (1980) (an appellant should be permitted to amend a timely filed notice of appeal under § 807.07(1) to correct an "inconsequential" error in the content of the notice of appeal). All of the federal rules under consideration in Becker have substantially similar counterparts in Wisconsin. Therefore, we conclude that the Supreme Court's analysis in Becker is persuasive.

¶ 10. In conclusion, we conclude that these appeals should not be dismissed at this time. Both appellants will be given the opportunity to file a signed notice of appeal with the clerk of this court. If a signed notice of appeal is filed within fourteen days from the date of this decision, the appeal may go forward. If either appellant does not file a signed notice of appeal within fourteen days, then that appeal will be dismissed.

By the Court. — Jurisdiction confirmed.

       We will consolidate these appeals for purposes of this opinion.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Seay did, however, subsequently send a letter to the clerk of this court indicating that his file had been lost during an institutional transfer and asking that the clerk forward to him a copy of the notice of appeal so that he "may sign it and send it back in order that it be made a part of the record."

       Because the opinion in Becker is not based on the United States Constitution, it is not binding on this court. State ex rel. Shimkus v. Sondalle, 2001 WI App 238, ¶ 8, 239 Wis. 2d 327, 620 N.W.2d 409. However, we will follow the reasoning of a federal court decision that we deem persuasive on a particular point of law. Id. See also State ex rel. Nichols v. Litscher, 2001 WI 119, ¶ 18 n.4, 247 Wis. 2d 1013, 635 N.W.2d 292.