author: ¶ 1. VERGERONT, EJ.

text:
    Town of Avon, Plaintiff-Respondent, v. Edgar Oliver, Defendant-Appellant.

    Court of Appeals

      No. 01-1851.

      Submitted on briefs January 11, 2002.

    Decided March 21, 2002.

    2002 WI App 97
    (Also reported in 644 N.W.2d 260.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Gary A. Glojek and Mark R. Toth of Glojek Limited, West Allis.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Kenneth W. Forbeck of For-beck, Elliott, Monahan & Schomber S.C., Beloit.
    Before Vergeront, PJ., Roggensack and Deininger, JJ.

       Petition to review denied 6-11-02.

   ¶ 1. VERGERONT, EJ.

Edgar Oliver appeals an order of the trial court granting the Town of Avon a permanent injunction enjoining Oliver from using a "sport shooting range" on his agricultural property. Oliver argues that a conditional use permit is not required because: (1) Wis. Stat. §§ 66.0409(2) and 895.527(5) (1999-2000) prohibit local zoning ordinances from regulating sport shooting ranges in place prior to June 18, 1998; and (2) even if the zoning ordinance does control, the sport shooting range is permitted as an "accessory use" to agricultural property. We conclude that the plain language of §§ 66.0409(2) and 895.527 does not prohibit a local zoning ordinance in effect on June 18, 1998, from regulating Oliver's sport shooting range, which has been in place since March 1998. We also conclude that the trial court correctly decided that Oliver's sport shooting range is not an accessory use to prime agricultural property as defined in the Town's zoning ordinance. We therefore affirm the permanent injunction prohibiting Oliver's use of the sport shooting range.

BACKGROUND

¶ 2. Most of the relevant facts are not disputed. Oliver owns real property in the Town of Avon and his property is zoned A Prime Agricultural. The Town's zoning ordinance, in effect since June 12, 1978, categorizes the uses allowable in each zoning district as follows:

G. USE REGULATIONS: Only the following uses or their essential services shall be allowed in any district:
1. Principal Uses specified for a district.
2. Accessory Uses are permitted in any district but not until their principal structure is present or under construction....
3. Conditional Uses and their accessory uses shall be permitted in specified districts after review by the Board of Adjustment, public hearing, and approval by the Town Board in accordance with the procedures and standards established herein.
5. If a use is not specifically mentioned, specified or provided for in this Ordinance, then, before such use may be made of any property within the Town of Avon, application shall be made to the Town Zoning Committee for an amendment to this Ordinance permitting such use in the district or districts specified in the application, such application for amendment to be made in accordance with the procedures set forth in this Ordinance.

Town of Avon, Wis., Zoning ORDinance § 3G (1978).

¶ 3. The ordinance defines a "principal use" as a "main or primary use of land. . . ., as distinguished from a conditional, subordinate or accessory use, as specified and permitted by the regulations of the district in which it is located." Town of Avon, Wis., Zoning Ordinance § 2B (1978). An "accessory use" is "[a] subordinate use on the same lot which is incidental and -customary in connection with the principal or conditional use." Id. A "conditional use" is "[a] use of such a special nature as to make impractical its predetermination as a principal use in a district." Id.

¶ 4. The principal uses for property zoned A Prime Agricultural are: general farming, forestry, grazing, hatcheries, nurseries, orchards, paddocks, poultry raising, stables, truck farming, and "[o]ther appropriate agricultural pursuits." Town of Avon, Wis., Zoning Ordinance § 4B (1978).

¶ 5. In March 1998, Oliver began sport shooting on his property. Oliver concedes that a "sport shooting range," as defined in the Wisconsin Statutes, is located on his property, and that he and others periodically use it. Oliver's sport shooting range consists of five round shooting targets, placed 100 yards apart with the furthest 500 yards away, and another target forty-eight by forty-eight inches square at a distance of 1,000 yards. According to Oliver, when he and his friends use the sport shooting range, two or three individuals shoot at one time.

¶ 6. The Town of Avon advised Oliver that continued use of the sport shooting range required a conditional use permit, but neither Oliver nor anyone on his behalf applied for a conditional use permit. The Town sought a permanent injunction prohibiting Oliver from using his property as a target shooting range or a sport shooting range. After an evidentiary hearing, the trial court concluded that neither Wis. Stat. § 895.527(5) nor Wis. Stat. § 66.0409 prohibited the Town from applying its zoning ordinance to Oliver's sport shooting range. The court also determined that the sport shooting range was neither a principal use nor an incidental or customary use under the Town's zoning ordinance. Accordingly, it entered a permanent injunction prohibiting Oliver from using his property as a sport shooting range.

DISCUSSION

¶ 7. Oliver argues that Wis. Stat. §§ 66.0409 and 895.527 prohibit the Town from regulating his sport shooting range. The interpretation of these statutes presents a question of law, which we review de novo. See CSO Servicing Corp. v. City of Eau Claire, 196 Wis. 2d 77, 82, 536 N.W.2d 731 (Ct. App. 1995). The purpose of statutory construction is to. give effect to the legislature's intent. Id. When statutes relate to the same subject matter, we consider them together and attempt to harmonize them. City of Milwaukee v. Milwaukee County, 27 Wis. 2d 53, 56, 133 N.W.2d 393 (1965). We first examine the language of the statute itself and if that plainly expresses the legislative intent, we apply that language to the facts at hand. See CSO Servicing Corp., 196 Wis. 2d at 82. In all cases we are obligated to construe statutes in a manner that avoids absurd or unreasonable results. See Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 376, 597 N.W.2d 687 (1999). Thus, we do not consider disputed language in a statute in isolation, but in the context of the entire statute. Alberte v. Anew Health Care Servs., Inc., 2000 WI 7, ¶ 10, 232 Wis. 2d 587, 605 N.W.2d 515.

¶ 8. Wisconsin Stat. § 66.0409 applies to the local regulation of firearms and provides in relevant part:

(2) Except as provided in subs. (3) and (4), no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.
(3)....
(b) Nothing in this section prohibits a city, village or town that is authorized to exercise village powers under s. 60.22(3) from enacting an ordinance or adopting a resolution that restricts the discharge of a firearm.
(4) (a) Nothing in this section prohibits a political subdivision from continuing to enforce an ordinance or resolution that is in effect on November 18, 1995, and that regulates the sale, purchase, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, if the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.
(c) Nothing in this_ section prohibits a political subdivision from enacting and enforcing a zoning ordinance that regulates the new construction of a sport shooting range or when the expansion of an existing sport shooting range would impact public health and safety.

¶ 9. Wisconsin Stat. § 895.527 applies to the local regulation of "sport shooting ranges" and provides:

Sport shooting range activities. (1) In this section, "sport shooting range" means an area designed and operated for the use and discharge of firearms.
(2) A person who owns or operates a sport shooting range is immune from civil liability related to noise resulting from the operation of the sport shooting range.
(3) A person who owns or operates a sport shooting range is not subject to an action for nuisance or to zoning conditions related to noise and no court may enjoin or restrain the operation or use of a sport shooting range on the basis of noise.
(4) Any sport shooting range that exists on June 18, 1998, may continue to operate as a sport shooting range at that location notwithstanding any zoning ordinance enacted under s. 59.69, 60.61, 60.62, 61.35 or 62.23(7), if the sport shooting range is a lawful use or a legal nonconforming use under any zoning ordinance enacted under s. 59.69, 60.61, 60.62, 61.35 or 62.23(7) that is in effect on June 18, 1998.
(5)Any sport shooting range that exists on June 18, 1998, may continue to operate as a sport shooting range at that location notwithstanding all of the following:
(a) Section 167.30, 941.20(l)(d) or 948.605 or any rule promulgated under those sections regulating or prohibiting the discharge of firearms.
(b) Section 66.092(3)(b) [s. 66.0409(3)(b)] or any ordinance or resolution.
(c) Any zoning ordinance that is enacted, or resolution that is adopted, under s. 59.69, 60.61, 60.62, 61.35 or 62.23(7) that is related to noise.
(6) A city, village town or county may regulate the hours between 11:00 p.m. and 6:00 a.m. that an outdoor sport shooting range may operate, except that such a regulation may not apply to a law enforcement officer as defined in s. 165.85(2)(c), a member of the U.S. armed forces or a private security person as defined in s. 440.26(lm)(h) who meets all of the requirements under s. 167.31(4)(a) 4.
(7) A person who is shooting in the customary or a generally acceptable manner at a sport shooting range between the hours of 6:00 a.m. and 11:00 p.m. is presumed to not be engaging in disorderly conduct merely because of the noise caused by the shooting.

¶ 10. Oliver first relies on the prohibition in Wis. Stat. § 66.0409(2) against the enactment of an ordinance that regulates the use of any firearm if it is more stringent than a state statute. According to Oliver, the Town's ordinance is more stringent than a state statute because Wis. Stat. § 895.527(5) prohibits local regulation of all sport shooting ranges in existence on or before June 18,1998, even if the sport shooting range is not a lawful or legal nonconforming use.

¶ 11. We disagree with Oliver's reading of these statutes. Oliver reads Wis. Stat. § 895.527(5) in isolation and overlooks § 895.527(4). Subsection (4) provides that a sport shooting range existing on June 18, 1998, may continue to operate provided it is a lawful or legal nonconforming use under a zoning ordinance in effect on June 18, 1998. If Oliver's construction of subsec. (5) is correct, then subsec. (4) is superfluous: if all sport shooting ranges that existed on June 18, 1998, may continue to operate under subsec. (5), it is unnecessary to specify that sport shooting ranges that existed on June 18, 1998, and were lawful or legal non-conformed uses under zoning ordinances then in existence may continue to operate under subsec. (4). However, we are to construe a statute, where possible, so that no part of it is rendered superfluous. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 250, 493 N.W.2d 68 (1992). Considered in the context of the entire section, the plain meaning of subsec. (5) is to further clarify the effect of particular criminal laws and local ordinances on the sport shooting ranges referenced in subsec. (4) — those that were both in existence on June 18, 1998, and lawful or legal nonconforming uses under a zoning ordinance in effect on that date. Therefore, there is no conflict between Wis. Stat. § 66.0409(2) and applying a zoning ordinance that was in effect on June 18, 1998, to a sport shooting range on that date.

¶ 12. Oliver also contends that the exception in Wis. Stat. § 66.0409(4)(c) does not apply because his sport shooting range is not a new construction or expansion of a sport shooting range.

¶ 13. This argument is both factually and legally flawed. Oliver's sport shooting range did not exist in 1995, when Wis. Stat. § 66.0409's predecessor was first enacted. Thus § 66.0409(4)(c) plainly does permit enforcing a zoning ordinance that regulates his sport shooting range. Moreover, para. (4)(c) unambiguously expresses the legislature's intent that § 66.0409 does not affect the ability of political subdivisions to enact and enforce zoning ordinances to regulate sport shooting ranges. The reference to "new construction" or "expansion" simply means that the legislature assumed that sport shooting ranges that existed on the date the statute was enacted were permitted under existing zoning ordinances.

¶ 14. We conclude that Wis. Stat. § 66.0409 does not prohibit municipalities from enacting and enforcing zoning ordinances that apply to sport shooting ranges, and that Wis. Stat. § 895.527 does not prohibit the Town of Avon from applying its zoning ordinance to Oliver's sport shooting range unless that was a lawful use under the ordinance as of June 18, 1998.

¶ 15. Oliver next argues that his sport shooting range is lawful under the Town's zoning ordinance— both as of June 18, 1998, and presently — because it is an "accessory use," which does not require a conditional use permit. According to Oliver, his sport shooting range must be considered an accessory use because it makes up less than 1% of his 300-acre property, and it is similar to other recreational activities enjoyed by adjacent landowners on their property such as hunting and riding all-terrain vehicles.

¶ 16. The interpretation of an ordinance and its application to a set of undisputed facts is a question of law, which we review de novo. County of Adams v. Romeo, 191 Wis. 2d 379, 383, 528 N.W.2d 418 (1995). When interpreting an ordinance, we apply the same rules of construction that we apply to statutes. Schroeder v. Dane County Bd. of Adjustment, 228 Wis. 2d 324, 333, 596 N.W.2d 472 (Ct. App. 1999).

¶ 17. Plainly, a sport shooting range is not one of the primary uses in a prime agricultural district, and Oliver has no conditional use permit for any other uses. Therefore, in order to constitute an accessory use, the sport shooting range must be a subordinate use that is "incidental and customary in connection with" one of the principal uses. We understand Oliver to argue that the shooting range is an accessory use to general farming, but our analysis would be the same for any other principal use for prime agricultural districts.

¶ 18. The parties have not directed us to any published Wisconsin case addressing this definition of "accessory use" and we have located none. However, the terms "incidental" and "customary" are very common components of definitions of "accessory use," and we therefore have the benefit of zoning treatises and cases from other jurisdictions as aids in our interpretation.

¶ 19. According to 2 E. C. Yokley, Zoning Law and Practice § 8.2 (4th ed. 1978), a use is incidental if the use is not "the primary use of the property," is "minor in significance," and has a "reasonable relationship with the primary use." "Incidental," in the context of accessory use, means not only that the disputed use is subordinate to or minor in significance compared to the principal use, but also that it has a reasonable relationship to the primary use. Henry v. Board of Appeals of Dunstable, 641 N.E.2d 1334, 1336 (Mass. 1994).

¶ 20. "Customary," according to 83 Am. Jue. 2d Zoning and Planning § 224 (1992), which Oliver relies on, adds these additional requirements as part of its accessory use discussion:

[W]hether a use of land is permitted as an accessory use, it is not enough to determine whether that use is incidental to the main use; the use must be habitually, commonly, and by long practice established as a reasonable use. Factors to consider are: size of the lot in question; nature of the primary use; use made of adjacent lots; economic structure of the area; and the actual incidents of similar use in the area.

Accord 2 Kenneth H. Young, Anderson's American Law of Zoning § 9:28 (4th ed. 1996). Cases from other jurisdictions illustrate the application of the requirement that the disputed use be customarily connected with the principal use. See, e.g., Town of Salem v. Durrett, 480 A.2d 9, 11 (N.H. 1984) ("[T]he use must be 'habitually ... established as reasonably associated with the primary use'... a rare association of uses cannot qualify as customary, though the uses need not be joined in a majority of instances of the principal use."); Champaine v. Zoning Hearing Bd. of East Bradford Township, 374 A.2d 752, 754 (Pa. Commw. Ct. 1977) ("[P]roof of customary incidence has entailed a showing that a significant percentage'of like principal uses in the area have accessory uses of the nature and extent in question."); Colts Run Civic Ass'n v. Colts Neck Township Zoning Bd. of Adjustment, 717 A.2d 456, 462 (N.J. Superior Ct. Law Div. 1998) ("[A] court must 'determine whether [the proposed use] has commonly, habitually and by long practice been established as reasonably associated with the primary use'. . . not [a use] 'peculiar to the applicant' but rather one 'prevailing generally.'").

¶ 21. We conclude that in order to establish that his sport shooting range is an accessory use to the principal use of general farming, Oliver must show that the sport shooting range is reasonably associated with general farming, but minor in significance compared to general farming ("incidental"), and is commonly and by long practice established as reasonably associated with general farming in the area of the property ("customary"). Oliver does not appear to disagree that he must satisfy this standard, and he does not argue that the trial court did not apply this standard. Rather, he contends that the undisputed facts show that he met this standard. We agree with Oliver that the facts relevant to whether the sport shooting range is "incidental" to general farming are not disputed, but we conclude that, as a matter of law, they do not establish that the sport shooting range is incidental to general farming. The record shows that the sport shooting range is minor in size compared to Oliver's entire acreage, and it is reasonable to infer that use of his property as a sport shooting range is of minor significance compared to its use for general farming. However, the record does not show any reasonable association between the activities involved in the sport shooting range and the activities of general farming.

¶ 22. In addition, with respect to whether a sport shooting range is commonly and by long practice reasonably associated with general farming in the area, we do not agree with Oliver that the relevant facts are undisputed. Oliver testified at the temporary injunction hearing that target practice takes place on three properties close to his farm. However, Oliver did not testify to the primary uses of these properties and could not state whether the owners had a special use permit for shooting practice. Patrick O'Neill, chairperson of the Town of Avon, testified that he could recall a past neighbor who did fire his gun with regularity, but to the best of O'Neill's recollection the neighbor did not have anyone else come over and shoot with him as Oliver does. With regard to other property that Oliver testified was used as a shooting range, O'Neill testified that he did not believe that it was regularly used as one. O'Neill also testified at the hearing on the permanent injunction that he knew of many people in the Town who hunt, and that they probably did sight their rifles or weapons by shooting them on their properties. However, he did not testify that this activity was in conjunction with a sport shooting range on agricultural property used as a farm.

¶ 23. Although the trial court did not make specific findings on the extent of sport shooting ranges on other prime agricultural properties in the area, we assume the court implicitly made those findings necessary to support its decision, and we accept those implicit findings if they are supported by the record. See Sohns v. Jensen, 11 Wis. 2d 449, 453, 105 N.W.2d 818 (1960). The testimony in this case supports the trial court's decision that a sport shooting range is not a customary use in connection with general farming in the area. More specifically, the record does not show that a sport shooting range is commonly and by long practice reasonably associated with general farming in the area.

¶ 24. Oliver argues that his sport shooting range is similar to other recreational activities enjoyed by adjacent landowners, such as hunting and riding all-terrain vehicles. However, there is no indication in the ordinance, or in any authority Oliver has provided, that a use is an accessory use solely because it may be described as a recreational activity; and at least one other court has expressly rejected this argument. Town of Aurora v. Kranz, 478 N.Y.S.2d 218, 219 (N.Y. App. Div. 1984) (disagreeing with trial court's reasoning that whether the use was for a general "recreational purpose" is relevant determination of accessory use), aff'd, 473 N.E.2d 262 (N.Y. 1984). Whether a sport shooting range may be considered a "recreational activity," and what other types of activities that may be described as "recreational activities" take place on similarly zoned property, is not pertinent to whether Oliver's sport shooting range is an accessory use to general farming.

¶ 25. In summary, we conclude the trial court correctly decided that Oliver's sport shooting range is not an accessory use to prime agricultural property under the Town's zoning ordinance. And, as we have held above, the plain language of Wis. Stat. §§ 66.0409(2) and 895.527 does not prohibit a local zoning ordinance in effect on June 18, 1998, from regulating Oliver's sport shooting range. Accordingly, we affirm the trial court's permanent injunction prohibiting Oliver's use of the sport shooting range.

By the Court. — Order affirmed.

       Wisconsin Stat. § 66.0409 (1999-2000) was previously numbered Wis. Stat. § 66.092 (1997-98). However, because the statute itself is exactly the same, we will refer to it as currently codified in the 1999-2000 version. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The Town's ordinance provides that "general farming" includes:
      dairying, livestock and poultry raising, nurseries, greenhouses and other similar enterprises or uses, provided that no greenhouses or buildings for the housing of livestock or poultry shall he located within 100 feet of any boundary of a residential or commercial lot other than that of the owner or lessee of such greenhouses or buildings containing such livestock or poultry.
      Town of Avon, Wis., Zoning ORDINANCE § 4B (1978).

       A "sport shooting range" is defined in Wis. Stat. § 66.0409(1) (c) as "an area designed and operated for the practice of weapons used in hunting, skeet shooting and similar sport shooting," and in Wis. Stat. § 895.527(1) as "an area designed and operated for the use and discharge of firearms."

       Wisconsin Stat. § 66.092 (1995-96), the predecessor to Wis. Stat. § 66.0409, was enacted on November 16, 1995, and became effective on November 18, 1995. 1995 Wis. Act 72.

       Oliver also contends that the exception under Wis. Stat. § 66.0409(3)(b) does not apply because the zoning ordinance does not restrict the discharge of a firearm. We agree with Oliver that the Town's zoning ordinance does not come within this exception. However, this exception is irrelevant in view of our conclusion regarding § 66.0409(4)(c).

       The dictionary definition for "incidental" is: "subordinate, nonessential, or attendant in position or significance.. . : occurring as a minor concomitant." Webster's Third New International Dictionary 1142 (unabr. ed. 1993). Subordinate is defined as: "1: . . . holding a lower or inferior position." Id. at 2277 (also including definition "subordinate... 1: ... make or consider as of less value or importance"). Since "incidental" is defined as "subordinate," but also has more specific definitions, we conclude the use of "subordinate" in this ordinance's definition of "accessory use" does not add any qualification not conveyed by "incidental," and therefore we focus our analysis on the words "incidental and customary."

       The trial court made a finding that "[a] target shooting range or sport shooting range is not so necessary or commonly to be an expected use in conjunction with [p]rime [ajgricultural land," apparently employing a definition of accessory use that Oliver offers from 83 Am. Jur. 2d Zoning and Planning § 224 (1992): "An accessory use has been defined as a subordinate use, customarily incident to the principal use, and so necessary or commonly to be expected in conjunction therewith that it cannot be supposed that an ordinance was intended to prevent it." (Footnotes omitted.) Although we have not used this exact formulation, we see no significant difference between this definition and the one we have adopted.


source: Caselaw Access Project

author: ¶ 1. CANE, C.J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Dale H. Chu, Defendant-Appellant.

    Court of Appeals

      No. 01-1934-CR.

      Submitted on briefs February 25, 2002.—

      Decided March 26, 2002.

    2002 WI App 98
    (Also reported in 643 N.W.2d 878.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Andrew Shaw of Shaw Law Offices of Milwaukee, and of counsel, Rex R. Anderegg of Anderegg & Mutschler, L.L.P. of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sarah K. Larson, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 6-11-02.

   ¶ 1. CANE, C.J.

Dale Chu appeals from judgments entered on jury verdicts convicting him, as a party to a crime, of committing arson of both a building and property with the intent to defraud an insurer, contrary to Wis. Stat. §§ 943.02(1)(b), 943.04 and 939.05. Chu argues that he was wrongfully subjected to racial stereotyping when the prosecutor referred to his Korean culture. He presents four additional arguments, relating to exculpatory evidence, sufficiency of the evidence, ineffective assistance of counsel and the trial court's admission of evidence. Finally, he seeks a discretionary reversal. We reject Chu's arguments and affirm the judgments.

Statement of Facts

¶ 2. Chu's convictions relate to a January 4,1998, fire at one of several dry cleaning stores owned by Chu's parents, So Man and Sun Hee. The fire destroyed part of the building, as well as some machines and dresses that were in the store. Chu, who was a seventeen-year-old high school student in January 1998, often worked at the stores.

¶ 3. According to Belinda and Jeff VanDe-Leygraaf, who lived in the house next to the store, a small car playing loud music pulled into the store driveway at approximately 8 pirn. The VanDeLeygraafs both testified that they saw three or four individuals near or in the car.

¶ 4. The VanDeLeygraafs saw an Asian male exit the store through the overhead garage door and get into the car. Then, the four individuals drove away. Jeff testified that he recognized the man as someone who drove the delivery van for So Man.

¶ 5. At approximately 8:30 p.m., two citizens driving past the store observed that it was on fire. They went to the VanDeLeygraafs' home and asked them to call 911. Officer Jeffrey Gross of the City of Appleton Police Department was dispatched to the store.

¶ 6. Upon arrival, Gross observed an open window on the east side of the building. The fire ultimately was extinguished, but not before it caused substantial damage to the building and property inside, including machines and dresses. Law enforcement began an investigation to determine the cause of the fire. Investigators found no sign of forced entry and concluded that the open window indicated an attempt to the keep oxygen in the building so that the fire would burn.

¶ 7. Eugene Reece, Deputy Fire Chief for the City of Appleton and one of the State's arson experts, testified that he and his team of investigators eventually ruled out electrical appliances, spontaneous combustion of chemicals, sunlight and accidental factors as causes of the fire. Reece's opinion was that the fire was intentionally set. Daniel Hughes, an independent fire investigator and another of the State's arson experts, held the same opinion.

¶ 8. At the scene of the fire, Randy Cook, an investigator with the police department, discovered financial and court documents which prompted him to investigate a possible financial motive for the fire. Julie Russell, financial investigator for the police department, testified that So Man's business was in serious financial trouble in 1997. There were times in 1997 when So Man's business checking account was $30,000 overdrawn. Additionally, So Man did not make the $7,100 mortgage payment on his business for December 1997. There were also $87,000 in judgments against So Man, and the Wisconsin Department of Revenue had issued warrants against So Man for not paying taxes.

¶ 9. Cook's investigation further revealed that So Man took out an additional $80,000 in insurance on his business two days before the fire. So Man ultimately submitted a claim to his insurance company for $499,030 in losses, which included $82,732 of bridal inventory, including tuxedos and dresses averaging about $400 apiece. None of the witnesses, however, saw any tuxedos in the store, and only thirty-nine hangers containing burned dresses were found at the scene, compared to the 400 to 500 that So Man claimed were there. Some of the wedding dress tags that were not destroyed revealed that the dresses were obsolete and had been purchased at a low cost.

¶ 10. Additionally, the room where the dry cleaned clothing usually hung from the ceiling was virtually empty. Outside, the investigators found the customers' clothing stored in one of the store's delivery vans.

¶ 11. Ultimately, Chu was charged, as a party to a crime, with committing arson of both a building and property with the intent to defraud an insurer. The State's theory was that So Man and Chu planned the fire because So Man needed insurance money to recover from his financial difficulties. The State said that Chu set the fire when he and three other teens went to the store at approximately 8 p.m., and that the VanDe-Leygraafs saw him exit the building. In its opening statement, the State suggested that Chu's motive for helping his father was twofold. First, the State said Chu was devoted and loyal to his father, "particularly, because of his Korean culture." Second, the State said that Chu expected to someday take over the business.

¶ 12. The State also introduced two witnesses who said that Chu told them that he set the fire. Joanne Weiss, the owner of the house where Chu lived in the summer of 1999 and a "surrogate mother" of sorts to Chu, testified that Chu admitted to her that he had been involved in the fire. She explained that "he didn't come right out and say, I set fire to the building, but he had taken measures for the business to burn down. Dale said his dad had told him what to do." She said that Chu told her that the business was failing and that they wanted to put in a bridal shop, but they needed the money to do so.

¶ 13. Nicholas Wales testified that he attended a party with Chu days after the fire. Wales said that Chu told him he burned down the store. Wales said Chu explained that he did so because his father was "hurting for money," had taken out a big insurance policy and had asked his two sons, Chu and Jay, and several others to burn the store. Wales also testified that a month or two later, Chu told him that he was nervous he was going to get caught.

¶ 14. Chu's defense was that he was not involved in the fire. Although Chu cross-examined the State's arson experts with respect to their conclusions about the cause of the fire, he offered no expert testimony to refute their opinions that the fire was intentionally set. Rather, his defense was that even if it was arson, there was no evidence that Chu was involved. He suggested that he had no involvement in the financial aspects of the business and that he had not made any insurance claims.

-¶ 15. Chu testified that earlier in the day on January 4, his father, brother and others cleaned and covered machinery in preparation for remodeling in the store. While his family worked in the store, Chu and his cousin, Suk Won, delivered clothes to So Man's other stores. He said that they all left the store shortly before 7:30 p.m. to return to the Chu residence.

¶ 16. Chu testified that he, Jay, Won and a friend, Mark Nelson, soon returned to the store because they had forgotten they were supposed to retrieve a fire extinguisher and take it to another of So Man's stores. The young men rode in Chu's vehicle, with Chu driving. Chu said that when they arrived, Won got out of the vehicle to retrieve the extinguisher from one of the vans parked outside the store, but no one entered the store.

¶ 17. The jury found Chu guilty, as a party to a crime, of committing arson of both a building and property with the intent to defraud an insurer. He was sentenced to seven years in prison and five years' probation, to be served consecutively. Chu filed several post-trial motions, all of which were denied. This appeal followed.

¶ 18. Chu presents six arguments: (1) his due process rights were violated when he was subjected to racial stereotyping; (2) his due process rights were violated when the State failed to provide exculpatory evidence concerning Weiss and Wales; (3) there was insufficient evidence to sustain the verdicts "because the State's experts and lay witnesses all had contradictory theories about how the fire started, none of which could be confirmed by the physical evidence from the fire site;" (4) his counsel provided ineffective assistance "by overlooking numerous deficiencies of the State's case and virtually embracing the State's theory of guilt;" (5) the trial court erroneously admitted highly prejudicial and improper evidence; and (6) this court should exercise its power of discretionary reversal and grant him a new trial. We reject these arguments and affirm the judgments.

Discussion

I. Racial stereotyping

¶ 19. Chu contends that his due process rights were violated when he "was subjected to racial stereotyping suggesting that Korean sons are automatons who blindly carry out the orders of their fathers even when the orders involve criminal activity." Specifically, he objects to three instances where Chu's race or culture were referenced.

¶ 20. First, in its opening statement the State said: "The evidence will show in fact as part of his family setup, and more particularly, because of his Korean culture, [Chu] was very devoted and loyal to his father." Second, Weiss testified:

1 know that Dale would have to get something out of it, but his dad is the one that should be sitting in that chair. In my eyes, his dad is the one that is responsible. Dale was a 16-year old kid and in his culture and in Dale's beliefs, you just don't talk back to your parents, you don't - you do what your parents ask you to do.[]

Finally, the State in closing argument stated: "Dale Chu was — as a part of his life experiences, as part of his test of loyalty — was faced with the biggest test of loyalty of his life, loyalty on behalf of his dad.And he carries out that mission .... to get out of that tremendous bond."

¶ 21. Although Dale did not object to these statements at trial, he argues that "the State's use of racial stereotype amounted to plain error, and mandates reversal of Dale Chu's convictions because the use of racial stereotypes could well have enflamed the jury and resulted in a verdict based on something other than the evidence."

¶ 22. The State agrees that this court should review the remarks under a plain error analysis. See State v. Street, 202 Wis. 2d 533, 552, 551 N.W.2d 830 (Ct. App. 1996) ("plain error" must be obvious, substantial, and so fundamental that a new trial must be granted). However, the State contends that the statements by the prosecutor and Weiss were not improper. We agree.

¶ 23. Our conclusion is consistent with Aliwoli v. Carter, 225 F.3d 826 (7th Cir. 2000), where the seventh circuit recognized that although there is no place in a criminal prosecution for "gratuitous references to race," the State may properly refer to race where it is relevant to the defendant's motive. See id. at 831. Aliwoli was charged with attempting to kill three white police officers who stopped him for a routine traffic violation. Id. at 828. He pled not guilty by reason of insanity and presented expert witnesses who testified that Aliwoli suffered from a persecutoria! delusional disorder that caused him to believe that police officers were members of a conspiracy to harass him. Id.

¶ 24. To refute Aliwoli's claims, the State sought to establish that Aliwoli's membership in the Muslim faith gave him a motive to shoot the three police officers. Id. at 830. The prosecutor questioned witnesses about Aliwoli's religious beliefs as a Muslim. Id. at 830-31. For example, the State cross-examined two of Aliwoli's expert witnesses by asking whether Aliwoli's Muslim faith encompassed an anti-authority stance. Id. Aliwoli was convicted.

¶ 25. On appeal, Aliwoli argued that the prosecutor's questions deprived him of a fair trial. Id. at 831. The seventh circuit rejected Aliwoli's claim, stating:

We find-no constitutional error in the prosecutor's questions. As a general rule, a racial remark is improper if it is "intentionally injected into volatile proceedings where the prosecutor had targeted the defendant's ethnic origin for emphasis in an attempt to appeal to the jury's prejudices." [United States v. Her nandez, 865 F.2d 925, 928 (7th Cir. 1989).] It is apparent from the context of the prosecutor's questions that the references to Aliwoli's membership in the black Muslim faith were only meant to show that Aliwoli had a motive for shooting the police officers. In other words, the questions were clearly intended to rebut Aliwoli's insanity defense. Because the questions about Aliwoli's beliefs as a black Muslim focused solely on his state of mind and potential motive for the shootings, they were not improper. Although the questions mentioned Aliwoli's race and religion, none of them can be reasonably viewed as attempting to arouse jury prejudice towards blacks or Muslims. In short, there is no evidence that these comments were intended to play upon the prejudices of the jury.

Id. at 831 (emphasis added).

¶ 26. Similarly, we do not view the prosecutor's statements as an attempt to arouse jury prejudice toward Koreans. Rather, the statements were an attempt to preview and summarize evidence demonstrating that Chu had a motive for committing the arson: his personal belief, based on his upbringing and culture, that he should remain loyal to his family. Indeed, the jury heard evidence concerning Chu's individual beliefs, introduced through Weiss as admissions.

¶ 27. When Weiss testified about Chu's beliefs and his statements to her about the fire, she indicated that she had had conversations with Chu about his family makeup and the Korean culture. Then, the State asked her, "[H]ow did [Chu] describe it to you regarding his relationship with his father, So Man Chu?" She responded:

His — his relationship with his father is, as he grew older, he was supposed to take care of his dad. Dale has a lot of pride. He — he takes care of the people that he loves very well and would never, ever do anything against his dad's wishes. To my understanding, if his father asked him to do something, he would do it.

¶ 28. Based on this testimony, it was not improper for the prosecutor to suggest that Chu held personal beliefs about family loyalty, based on his upbringing and culture, that suggest he would do as his father asked. The prosecutor did not ask the jury to find Chu guilty because he is Korean. Rather, the State suggested that Chu's beliefs gave him a motive to commit the arson to help his family and act consistently with his father's wishes. The statements do not constitute plain error.

II. Exculpatory information concerning Weiss and Wales

¶ 29. Chu argues that his due process rights were violated when the State failed to provide him with crucial exculpatory information concerning Weiss and Wales. Under the Fourteenth Amendment to the United States Constitution, the prosecution's suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963); see also State v. Nerison, 136 Wis. 2d 37, 54, 401 N.W.2d 1 (1987).

¶ 30. The prosecution's duty to disclose evidence favorable to the accused includes the duty to disclose impeachment evidence as well as exculpatory evidence. Strickler v. Greene, 527 U.S. 263, 280 (1999). Such evidence is material, however, only if there is "a reasonable probability that, had the evidence been disclosed to the defense, the-result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). A reasonable probability of a different result is shown when the government's evidentiary suppression undermines confidence in the outcome of the trial. See Kyles v. Whitley, 514 U.S. 419, 434 (1995). On appeal, this court independently applies the Bagley constitutional standard to the undisputed facts of the case. See State v. DelReal, 225 Wis. 2d 565, 571, 593 N.W.2d 461 (Ct. App. 1999).

A. Information concerning Weiss

¶ 31. Chu argues that both the State and the trial court had an obligation to provide him with exculpatory evidence involving Weiss. Specifically, Chu contends that the State should have provided him with information concerning a deferred prosecution agreement and ordinance violations, all of which stemmed from a single incident where Weiss provided five minors with alcohol. Weiss was ultimately issued a ticket for five counts of providing alcohol to minors, an ordinance violation. She paid a $763 forfeiture.

¶ 32. Additionally, in the course of responding to law enforcement's investigation of the matter, Weiss allegedly obstructed the investigation. She was charged with knowingly obstructing an officer, a class A misdemeanor. Weiss and the State entered into a deferred prosecution agreement that required Weiss to have no criminal violations during the agreement period and to contribute $100 to the Outagamie County Juvenile Diversion Program. The three-month agreement began on October 5, 1998. Because Weiss complied with the terms of the agreement, the charges were dismissed on January 19, 1999. The judge who approved the agreement and dismissed the case was the same judge that presided over this case.

¶ 33. Chu argues that the State should have provided him with information concerning the deferred prosecution and the ordinance violations prior to trial. He also argues that because the trial court had actual knowledge of Weiss's deferred prosecution, the court should have advised Chu of the information. Chu complains that the court did not stop or correct Weiss's testimony in order to comport with the facts concerning the deferred prosecution, and did not recuse itself.

¶ 34. In response, the State asserts that neither the deferred prosecution agreement nor the ordinance violations were disclosed because neither came to light in routine background checks on the State's witnesses. The State further argues that neither was required to be disclosed as Brady evidence and that neither had any bearing on the outcome of the trial. The State also maintains that there is no authority for Chu's assertion that the trial court had a duty to disclose information about Weiss.

¶ 35. First, we agree with the State that we should summarily reject Chu's argument that a trial court has an independent duty to disclose information about a prior case to a defendant. Chu offers no authority for this proposition and we decline to consider it further. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (This court may decline to review issues which are inadequately briefed.).

¶ 36. Next, we conclude that Chu's due process rights were not violated because even if the State suppressed evidence favorable to Chu, the evidence was not material to the determination of his guilt. See Brady, 373 U.S. at 87. Specifically, evidence of the deferred prosecution agreement and the ordinance violations was not material because it was not admissible and, therefore, would not have affected the outcome of the trial. See Bagley, 473 U.S. at 682.

¶ 37. As the State notes, prosecutions that end in dismissal and ordinance violations are not admissible to impeach a witness because they are not "evidence that the witness has been convicted of a crime." See Wis. Stat. § 906.09(1). Although Chu may be correct that the jury may have viewed Weiss differently if it had known about the prior incidents, he fails to explain how the evidence would have been admissible. It was not automatically admissible, and Chu does not identify grounds for its admissibility.

¶ 38. Instead, Chu's entire argument is based on his premise that Weiss had a motive to lie on the witness stand because of the deferred prosecution agreement. He cites United States v. Croucher, 532 F.2d 1042, 1045 (5th Cir. 1976), for the proposition that prior arrests that have not led to a conviction may be used to demonstrate a witness's motive to strike a good bargain with the government. In doing so, he appears to argue that Weiss would lie to improve her bargaining position with the State with respect to charges arising from her arrest.

¶ 39. Here, however, Weiss's criminal charge had been dismissed with prejudice by the time she testified. Indeed, the charge was dismissed even before Chu made admissions to Weiss. Additionally, Weiss had already paid the forfeiture associated with the ordinance violations by the time of trial. Accordingly Weiss had no need, and thus no motive, to strike any bargain with the government. To the extent Chu is attempting to argue that evidence of the deferred prosecution agreement would have been admissible to show Weiss's motive to lie, we reject his argument.

B. Information concerning Wales

¶ 40. Chu argues that the State failed to disclose evidence that Wales was being investigated for false swearing and that a police report recommended that he be prosecuted for obstruction of justice. The State disagrees, asserting that the relevant reports were disclosed to Chu's counsel prior to trial, and noting that the trial court found so at the Machner hearing.

¶ 41. In his reply brief, Chu offers no response to the State's argument concerning information about Wales. Unrefuted arguments are deemed admitted. See Charolais Breeding Ranches v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). Accordingly, we reject his argument without further discussion.

III. Sufficiency of the evidence concerning the cause of the fire

¶ 42. Chu argues that there is insufficient evidence to sustain the jury's verdicts because "the State's experts and lay witnesses all had contradictory theories about how the fire started, none of which could be confirmed by the physical evidence from the fire site." It is unclear whether Chu is disputing the jury's finding that the fire was intentionally set or asserting that the witnesses must agree precisely how the fire was intentionally set.

¶ 43. Assuming Chu is arguing the former, we conclude there is credible evidence to support the jury's findings that someone intentionally damaged the building and property by means of fire. Both Reece and Hughes offered this opinion. Reece explained that his opinion was based on the elimination of possible causes of the fire, such as electrical or mechanical malfunction. He told the jury about the extensive investigation and the months of probing that went into his determination and, in doing so, offered credible evidence that sustains the jury's verdict. See Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 388, 541 N.W.2d 753 (1995).

¶ 44. Chu may instead be arguing that the verdicts should be overturned because the State's experts could not agree on the precise method of starting the fire, and because their testimony conflicted with Chu's alleged admissions about how he started the fire. One of the State's experts, Reece, testified that natural combustibles were used to start the fire. Another expert, Hughes, testified that dresses were doused with something and lit with a match, although he admitted that there was no physical evidence that any kind of flammable liquid was used. Chu also notes that Weiss gave conflicting testimony about what Chu allegedly told her about the specific method of starting the fire. Additionally, Wales testified that Chu said a rag was lit after it was placed in a can of paint thinner or ether paint.

¶ 45. We reject Chu's argument because the jury was required to determine whether the fire was intentionally set - not specifically how it was set. See WI JI-Criminal 1405 and 1410. Here, the jury could find that the fire was intentionally set even if the witnesses disagreed precisely how the fire was intentionally set. See State v. Toy, 125 Wis. 2d 216, 222, 371 N.W.2d 386 (Ct. App. 1985) (The jury draws reasonable inferences from testimony, and it may choose to believe part of one witness's testimony and part of another's, even though the witnesses, as a whole, are inconsistent.).

IV Ineffective assistance of counsel

¶ 46. Chu argues that his trial counsel was ineffective because counsel "committed the most fundamental error of all by overlooking numerous deficiencies of the state's case and virtually embracing the state's theory of guilt." Specifically, Chu contends that his counsel failed to (1) retain an arson expert; (2) investigate Wales's and Weiss's backgrounds; (3) object to the State's use of racial stereotyping; and (4) object to other acts evidence. We reject Chu's first argument because we conclude counsel was not deficient. We reject his remaining arguments because Chu failed to respond to any of the State's arguments in his reply brief.

¶ 47. To establish ineffective assistance of counsel, a defendant must prove both that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Smith, 207 Wis. 2d 258, 273, 558 N.W.2d 379 (1997). Because the defendant must show both deficient performance and prejudice, reviewing courts need not consider one prong if the defendant has failed to establish the other. See State v. Brewer, 195 Wis. 2d 295, 300, 536 N.W.2d 406 (Ct. App. 1995).

¶ 48. With respect to the "performance" prong of the test, a strong presumption exists that counsel acted properly within professional norms. See Strickland, 466 U.S. at 689. A defendant must demonstrate that his attorney made serious mistakes which could not be justified in the exercise of objectively reasonable professional judgment, deferentially considering all the circumstances from counsel's contemporary perspective to eliminate the distortion of hindsight. See id. at 689-91. Further, the defendant's own statements or actions may substantially influence the reasonableness of counsel's actions. See State v. Pitsch, 124 Wis. 2d 628, 637, 369 N.W.2d 711 (1985).

¶ 49. An ineffective assistance of counsel claim is a mixed question of law and fact. State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). On review, we examine a trial court's findings of fact concerning the circumstances of the case and counsel's conduct and strategy under the clearly erroneous standard. State v. Tulley, 2001 WI App 236, ¶ 5, 248 Wis. 2d 505, 635 N.W.2d 807. However, whether counsel's performance was deficient and whether the deficient performance was prejudicial are questions of law that we review de novo. Id.

A. Failure to retain an arson expert

¶ 50. Chu argues that his trial counsel was deficient for failing to retain an arson expert, thereby embracing the State's theory that an arson had occurred. In closing argument, Chu's counsel stated that to argue that the fire was not intentionally set would be an insult to the jury's intelligence, but the fact that the fire may have been intentional did not prove that Chu started it. Counsel's testimony at the Machner hearing established that focusing on whether Chu was involved, rather than whether the fire was arson, was part of counsel's trial strategy. He explained, "Dale never particularly indicated to me that he didn't agree with it being characterized as an arson, his defense was, I didn't do it and beyond that I don't know who did."

¶ 51. Additionally, counsel testified that Chu did not have the funds to hire an arson expert. Finally, counsel stated that he did not retain an arson expert because he believed an expert's conclusions might actually hurt his Chu's case.

¶ 52. The trial court concluded that counsel was not deficient. The court stated:

I do find [trial counsel's] testimony to be particularly credible here today about all of the issues he testified about. [He] explained his rationale for all of his actions in this case, and he had good reasons, as he testified, for not hiring an arson expert. His client did not have sufficient funds. His other reasoning was that even if funds were expended, there was no guarantee whatsoever that the opinion would be anything different than the two opinions he saw by the State's expert witnesses.

These findings of fact concerning counsel's performance, based on the trial court's explicit credibility determination, are not clearly erroneous. Moreover, counsel's strategic choices, made after thorough investigation of the law and facts, are virtually unchallengeable. See Strickland, 466 U.S. at 690-91. We conclude that counsel was not deficient for failing to hire an arson expert.

B. Other alleged deficiencies

¶ 53. Chu also argues that his trial counsel was deficient for failing to investigate Wales's and Weiss's backgrounds, object to the State's use of racial stereotyping and object to other acts evidence. In response, the State provides four pages of argument detailing why Chu's counsel was not deficient and why, in the alternative, Chu was not prejudiced. Chu's reply brief provides no response to these arguments. Accordingly, they are deemed admitted and we will not address them further. See Charolais Breeding Ranches, 90 Wis. 2d at 109.

V. Challenges to the Admission of Evidence

¶ 54. Chu objects to several trial court rulings on evidence. Specifically, he argues that the trial court erroneously (1) admitted other acts evidence concerning gangs, drugs and child support; (2) refused to allow the defense to cross-examine Wales about the entire contents of an affidavit; and (3) allowed Weiss to testify as an expert when she stated that she had training as a "criminal thinking specialist" and that she believes that Chu "uses a lot of criminal thinking." Once again, the State has provided a detailed analysis of each alleged error, devoting over five pages of its brief to its argument that the evidence was properly admitted and if not, that the admission of the evidence was harmless error. Chu provides no response to the State's arguments in his reply brief. We therefore deem the State's arguments admitted. See id.

VI. Discretionary Review

¶ 55. Finally, Chu argues that this court should exercise its power of discretionary reversal under Wis. Stat. § 752.35 because it appears that the real controversy has not been fully tried and that justice has miscarried. In order to establish that the real controversy has not been fully tried, Chu must convince us that the jury was precluded from considering important testimony that bore on an important issue or that certain evidence which was improperly received clouded a crucial issue in the case. See State v. Darcy N.K., 218 Wis. 2d 640, 667, 581 N.W.2d 567 (Ct. App. 1998). To establish a miscarriage of justice, Chu must convince us there is a substantial degree of probability that a new trial would produce a different result. See id. An appellate court will exercise its discretion to grant a new trial in the interest of justice "only in exceptional cases." State v. Cuyler, 110 Wis. 2d 133, 141, 327 N.W.2d 662 (1983).

¶ 56. Chu contends that the real controversy was not fully tried because of the undisclosed exculpatory evidence, the use of inaccurate racial stereotypes and wrongfully admitted other acts evidence, and for other reasons that we have already addressed. He states that justice has miscarried because the State's experts and lay witnesses contradicted each other with respect to the fire's cause and because trial counsel implied that Chu was guilty. For the reasons discussed above, we reject Chu's challenges to the convictions and further conclude that there is no reason to exercise our discretionary authority under Wis. Stat. § 752.35.

By the Court. — Judgments affirmed.

       All statutory references are to the 1999-2000 version.

       Chu was actually 17 years old at the time of the fire.

       Although the order of dismissal does not explicitly state that the charge was dismissed with prejudice, we will assume it was because dismissal with prejudice is required by statute. See Wis. Stat. § 971.39(1)(f) (upon completion of deferred prosecution agreement, the court shall dismiss the charge, with prejudice).

       At the Machner hearing, Chu's trial counsel testified that although he was not sure exactly when he received the last supplement to the police reports, he did receive the information prior to trial. See State v. Machner, 101 Wis. 2d 79, 303 N.W.2d 633 (1981).

       This appears to be the only basis upon which Chu challenges the sufficiency of the evidence in his opening brief. He does suggest that he would have prevailed if Cook and Wales had given more complete and truthful answers, but that is not a challenge to the sufficiency of the evidence. In his reply brief, he raises additional factual issues for the first time in support of his argument that "The facts of the case show that Dale Chu was wrongly convicted." We decline to address the new issues raised in Chu's reply brief. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492-93, 588 N.W.2d 285 (Ct. App. 1998) (appellate court will not address arguments raised for first time in reply brief).

       WisConsin Stat. § 752.35 provides:
      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.


author: ¶ 1. PETERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Mark A. Coleman, Defendant-Appellant.
    Court of Appeals

      Nos. 01-2201-CR, 01-2202-CR.

      Submitted on briefs March 4, 2002.

    Decided March 26, 2002.

    2002 WI App 100
    (Also reported in 644 N.W.2d 283.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Margarita Van Nuland of Parke O'Flaherty, Ltd., La Crosse.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Gregory M. Weber, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   ¶ 1. PETERSON, J.

Mark Coleman appeals the sentencing portions of judgments convicting him of intentionally causing bodily harm to a child and bail jumping, contrary to Wis. Stat. §§ 948.03(2)(b) and 946.49(1)(b), both as a habitual criminal. See Wis. Stat. § 939.62(1)(a). Coleman argues that he was denied his right to counsel when the circuit court required him to represent himself at sentencing. We conclude that the record is insufficient to support a conclusion that Coleman forfeited his right to counsel and was competent to proceed without counsel. Therefore, we reverse the sentence and remand for further proceedings consistent with this opinion.

BACKGROUND

¶ 2. In June 2000, Coleman was charged with two counts of intentionally causing bodily harm to a child, two counts of bail jumping, one count of battery, and one count of disorderly conduct. A public defender represented Coleman.

¶ 3. At the time scheduled for the preliminary hearing, Coleman requested new counsel. He said his attorney was always "too busy" to talk to him. Counsel indicated Coleman thought the attorney was not prepared to question witnesses. The court granted the request, stating it did not want to set up the attorney for an ineffective assistance claim. The following appears on the record:

THE COURT: And you have to understand, Mr. Coleman, with the appointment of attorneys that's two strikes and you're out so if you don't like the second one, then you go it alone. You understand that?
THE DEFENDANT: If I don't like the second one -1 beg your pardon, sir?
THE COURT: If you don't like the second attorney then you go it alone.
THE DEFENDANT: Can I just go buy an attorney?
THE COURT: Hire one of your own?
THE DEFENDANT: Yeah.
THE COURT: Sure, if you've got the money.
THE DEFENDANT: Thank you very much.

¶ 4. On August 22, 2000, Coleman appeared at the preliminary hearing with his second attorney, John Bachman. The circuit court found probable cause to bind Coleman over for trial and set the arraignment date for August 29.

¶ 5. At the arraignment, pursuant to a plea agreement, Coleman pled no contest to one count of intentionally causing injury to a child and one count of bail jumping, both as a habitual criminal. Coleman submitted a signed guilty plea and waiver of rights form to the circuit court. The court accepted his pleas and found him guilty. Sentencing was scheduled for October 13, 2000.

¶ 6. Before sentencing, Coleman requested a two-week continuance to obtain medical records that he believed could be of benefit for sentencing arguments. The circuit court granted a continuance until October 31, 2000. On that date, Coleman informed the court that the medial records had not been received. The court informed Coleman that if he thought the records would help, the court would postpone the sentencing. Coleman then asked for another continuance, and the sentencing was rescheduled for December 1.

¶ 7. Two days before the rescheduled sentencing hearing, defense counsel filed a motion to withdraw. The record of the motion hearing follows:

MR. BACHMAN: Mr. Coleman doesn't want me to continue on this case and I don't think I should either. I'd ask to be allowed to withdraw in this case. The public defenders will not appoint another attorney for Mr. Coleman in this case. It's apparently set for sentencing on Friday.
THE COURT: All right, I'll relieve you of your responsibility.
That's what you want Mr. Coleman?
THE DEFENDANT: Sure.
THE COURT: You don't want Mr. Bachman?
THE DEFENDANT: I feel he's not in my best interest.
THE COURT: All right. Well, whatever.
Do you want to proceed to represent yourself then at sentencing?
THE DEFENDANT: No. I think I need an attorney.
THE COURT: Well, you know, it's - how many have you had?
THE DEFENDANT: Him.
MR. BACHMAN: He fired Ms. Liedtke before.
THE DEFENDANT: At the very beginning of the case they give me Liedtke and I don't want Liedtke because I didn't think, she didn't do anything.
THE COURT: Well, Mr. Bachman, I would ask you to do this for me. See if you can tell the public defenders what's gone on. If they won't appoint anybody, fine, then we'll have the sentencing December 1st at three o'clock and you're on your own then, Mr. Coleman. If they will then that's fine. We can reschedule the sentencing.
MR. BACHMAN: I'll try to persuade them to do that.

¶ 8. Coleman appeared at the sentencing hearing without an attorney. He indicated that he still wished to have an attorney. The circuit court denied the request because "this matter's gone on long enough and I think that the delays and some of the problems that have occurred have occurred because of your attitude and your unwillingness to cooperate with people you had trying to help you."

¶ 9. The circuit court sentenced Coleman to five years in prison for intentionally causing harm to a child, followed by five years' extended supervision and five years in prison for bail jumping, followed by five years' extended supervision. The sentences were to be served consecutively.

STANDARD OF REVIEW

¶ 10. Whether Coleman was deprived of his constitutional right to counsel is a question of constitutional fact that we review independently of the circuit court. See State v. Cummings, 199 Wis. 2d 721, 748, 546 N.W.2d 406 (1996). Questions of "constitutional fact" are not actually "facts" in themselves, hut are questions which require the "application of constitutional principles to the facts as found...." State v. Woods, 117 Wis. 2d 701, 715, 345 N.W.2d 457 (1984) (citation omitted).

DISCUSSION

¶ 11. A criminal defendant in Wisconsin is guaranteed the right to counsel by both article I, section 7 of the Wisconsin Constitution and the Sixth Amendment to the United States Constitution. Cummings, 199 Wis. 2d at 747-48. The right to counsel is necessary to ensure that a criminal defendant receives a fair trial, that all defendants stand equal before the law and ultimately that justice is served. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).

¶ 12. Coleman argues that he was denied his right to counsel when the circuit court required him to represent himself at sentencing. Specifically, Coleman contends that the court erred by: (1) failing to determine whether he waived counsel knowingly, voluntarily, and intelligently; and (2) failing to determine whether he was competent to proceed without counsel.

¶ 13. When a defendant elects to proceed without counsel, the circuit court must insure that the defendant: (1) has knowingly, intelligently and voluntarily waived the right to counsel; and (2) is competent to proceed without counsel. State v. Klessig, 211 Wis. 2d 194, ¶ 9, 564 N.W.2d 716 (1997). To establish the first prong, the circuit court must conduct a colloquy designed to ensure that the defendant: (1) made a deliberate choice to proceed without counsel; (2) was aware of the challenges and disadvantages of self-representation; (3) was aware of the seriousness of the charges; and (4) was aware of the general range of penalties that could be imposed. Id. at ¶ 14.

¶ 14. If a court determines that the defendant knowingly, intelligently and voluntarily waived the right to the assistance of counsel, the court must next determine whether the defendant is competent to proceed without counsel. Id. at ¶ 27. Factors to consider in making this second determination include the defendant's education, literacy, fluency in English, and any physical or psychological disability that may significantly affect his or her ability to communicate. Id. at ¶ 24.

A. Waiver/Forfeiture

¶ 15. Here, the State concedes that Coleman did not knowingly and intelligently waive his right to counsel. The record is clear that Coleman repeatedly indicated that he wanted counsel after the circuit court allowed his second counsel to withdraw. Instead, the State argues that Coleman forfeited the right to counsel by virtue of his conduct.

¶ 16. A defendant may, by his or her conduct, forfeit the right to counsel. Cummings, 199 Wis. 2d at 756.

In such a situation, a waiver of counsel and the deliberate choice to proceed pro se occurs, not by virtue of a defendant's express verbal consent to such procedure, but rather by operation of law because the defendant has deemed by his own actions that the case proceed accordingly.

State v. Woods, 144 Wis. 2d 710, 715-16, 424 N.W.2d 730 (Ct. App. 1988). These situations are unusual, "most often involving a manipulative or disruptive defendant . .. ." Cummings, 199 Wis. 2d at 752 (citation omitted).

¶ 17. The right to counsel cannot be manipulated to obstruct the orderly procedure for trial or to disrupt the administration of justice. Rahhal v. State, 52 Wis. 2d 144, 148, 187 N.W.2d 800 (1971). The triggering event for forfeiture is when the "court becomes 'convinced that the orderly and efficient progression of [the] case [is] being frustrated" by the defendant's repeated dissatisfaction with his or her successive attorneys. Cummings, 199 Wis. 2d at 753 n.15 (citing Woods, 144 Wis. 2d at 715),

¶ 18. However, forfeiture cannot occur simply because the effect of the defendant's conduct is to frustrate the orderly and efficient progression of the case. The defendant must also have the purpose of causing that effect.

¶ 19. Thus, in Keller v. State, 75 Wis. 2d 502, 249 N.W.2d 773 (1977), a defendant who had been previously represented by an attorney did not have counsel on the trial date. The court concluded that the case would proceed to trial because the trial had been set for three months and the witnesses and jury were ready. Id. at 505-06. Our supreme court reversed because the record contained "no evidence that the change of counsel was made for the purpose of delay or to manipulate the right to counsel so as to obstruct the orderly procedure for trials or to interfere with the administration of justice." Id. at 506. The court held that when considering forfeiture of the right to counsel, all "inquiries into the nature and intent of those actions and conduct must be pursued prior to imposing upon the defendant with the consequences of waiver." Id. at 509.

¶ 20. Cummings suggests the same conclusion. There, the circuit court allowed two of the defendant's attorneys to withdraw because the attorney-client relationship had been irrevocably damaged due to the defendant's unwillingness to cooperate. Id. 749. The court found that the defendant was continuously and unreasonably dissatisfied with each of his attorneys, yet he was unwilling to voluntarily waive his right to counsel. Id. at 750-51. The court concluded that the defendant had forfeited his right to an attorney. Id. at 756.

¶ 21. The supreme court affirmed. The court recognized that nonwaiver is presumed. Id. at 752. However, the circuit court had characterized the defendant's actions "as merely a tactic ... to prevent his case from going to trial...." Id. at 750-51. The supreme court agreed, concluding that the defendant's "behavior was manipulative and disruptive and that his continued dissatisfaction was based solely upon a desire to delay." Id. at 753.

¶ 22. Similar to the procedures suggested for use by a circuit court in accepting a waiver of the right to counsel, Cummings recommended that a court contemplating forfeiture make sure that the defendant understands the implications of his or her actions. Id. at 756 n.18. In a footnote, the court recommended that in the future, trial courts follow four steps recommended by the dissent for determining when a defendant has forfeited the right to counsel. Id. Those steps are to:

(1) [provide] explicit warnings that, if the defendant persists in [specific conduct], the court will find that the right to counsel has been forfeited .. .;
(2) [engage in] a colloquy indicating that the defendant has been made aware of the difficulties and dangers inherent in self-representation;
(3) [make] a clear ruling when the court deems the right to counsel to have been forfeited; and
(4) [make] factual findings to support the court's ruling —

Id. at 764 (Geske, J., dissenting).

¶ 23. The State notes that Cummings only "recommends" that circuit courts follow the four steps. Even though the circuit court here did not follow those steps, the State argues that there is sufficient evidence in the record to conclude that Coleman forfeited his right to counsel at the sentencing hearing.

¶ 24. First, however, there is no suggestion in the record that Coleman discharged his attorney for the purpose of delaying the proceedings. Further, even if a mental element is not required, we do not agree with the State that this record supports the extreme remedy of forfeiting Coleman's constitutional right to counsel.

¶ 25. The circuit court was understandably frustrated with Coleman. As the court stated, "[T]his matter's gone on long enough and I think that the delays and some of the problems that have occurred have occurred because of your attitude and your unwillingness to cooperate with people you had trying to help you." However, forfeiture of counsel is a drastic remedy. In State ex rel. Burnet v. Burke, 22 Wis. 2d 486, 492, 126 N.W.2d 91 (1964), the supreme court observed:

"The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused - whose life or liberty is at stake - is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused." To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. (Citation omitted.)

Arguably, a finding of forfeiture imposes an even greater responsibility upon the court.

¶ 26. Here, the trial court made no inquiries into the nature and intent of Coleman's conduct before requiring that Coleman proceed without counsel. See Keller, 75 Wis. 2d at 509. The court did not specifically warn Coleman that if he continued to fire his attorneys, his right to counsel would be forfeited. The court did not conduct a colloquy to determine that Coleman understood the difficulties of proceeding without counsel and there was not a clear ruling that Coleman had forfeited his right to counsel.

¶ 27. This case is much different than those where forfeiture has been upheld. For example, in Woods, after discharging two attorneys, the trial court warned the defendant "that he could not pick and choose the lawyer he wanted," and that the matter would proceed with a newly appointed attorney or the defendant would have to proceed on the trial date without counsel. Woods, 144 Wis. 2d at 713. The defendant persisted in his refusal to allow the third attorney to represent him, and the matter proceeded to trial with the defendant representing himself and the third attorney acting as standby counsel. Id. at 713-14.

¶ 28. In Cummings, after allowing the defendant's first and third attorneys to withdraw because of the breakdown of the attorney-client relationship, the trial court informed the defendant that his last chance to obtain counsel before trial was conditioned upon contacting the public defender. Id. at 757. It was made clear that if the defendant did not contact the public defender's office, then the defendant would be required to proceed without counsel at trial. Id.

¶ 29. Here, the circuit court did not specifically warn Coleman that if he discharged his attorney, the court would find that his right to counsel was forfeited. The only warning was given at the preliminary hearing approximately three months before sentencing. And that warning was not clear that Coleman was in danger of altogether forfeiting his right to counsel. Rather, it arguably was a warning that the public defender would not appoint a third attorney.

¶ 30. Further, the defendants in Woods and Cummings forfeited their right to counsel shortly before trial. Here, there was not a trial to delay. There were no witnesses or jurors to inconvenience and no large block of trial time to be wasted by delay. The circuit court allowed two previous adjournments to give Coleman the opportunity to secure medical records and gave no warning at those times that there would be no further adjournments. Moreover, the court indicated its willingness to grant a third adjournment if Bachman could prevail upon the public defender to appoint a third attorney for Coleman.

¶ 31. Finally, Coleman's second attorney was allowed to withdraw without any warning to Coleman about the consequences. Only after the withdrawal did the court indicate Coleman would be on his own if the public defender would not appoint a third attorney. Therefore, we conclude the record is insufficient to support a conclusion that Coleman, by his conduct, forfeited his constitutional right to counsel.

B. Competency

¶ 32. Coleman argues that the circuit court erred by failing to determine whether he was competent to proceed without counsel. As stated earlier, if a court determines that a defendant knowingly, intelligently and voluntarily waived the right to counsel, the court must next determine whether the defendant was competent to proceed without counsel. Klessig, 211 Wis. 2d at ¶ 27. We conclude that the same is true when a circuit court determines that a defendant has forfeited the right to counsel.

¶ 33. As already noted, in place of an express waiver, a defendant may, by conduct, forfeit the right to counsel. Cummings, 199 Wis. 2d at 756. Forfeiture, "by action or conduct, is subject to the same rules as in the instance where a defendant verbally informs the court that he wishes to proceed without counsel." Keller, 75 Wis. 2d at 509-10.

¶ 34. Thus, when a defendant engages in conduct meriting forfeiture, the court must determine whether the defendant is competent to proceed without an attorney. The trial court should consider the defendant's education, literacy, fluency in English, and any physical or psychological disability which may significantly affect his or her ability to communicate a possible defense. Klessig, 211 Wis. 2d at ¶ 24.

¶ 35. Nothing in the logic or holdings of the case law suggests that the court is relieved of the responsibility for determining competency in forfeiture of counsel cases. If it were otherwise, we would be left with an anomaly. A defendant could not voluntarily waive counsel unless he or she was competent. Yet, another defendant could waive counsel by forfeiting the right even though that defendant was incompetent. The law cannot countenance this inconsistency. If a defendant cannot voluntarily waive the right to counsel unless competent, neither can a defendant forfeit the right to counsel unless competent.

¶ 36. We recognize that this places the circuit court in a difficult position. Quite likely, many of the defendants whose conduct merits forfeiting the right to counsel will not cooperate in a meaningful colloquy on competence. Under these circumstances, the court will have to rely on the rest of the record to make a finding. If the record does not establish the defendant's competence, the court cannot require the defendant to proceed without counsel. The important point is that the defendant's conduct does not relieve the court of the obligation to make a finding whether the defendant is competent to proceed without counsel.

¶ 37. Here, the circuit court did not inquire or make a finding whether Coleman was competent to represent himself. As a result, it was error to require Coleman to proceed without counsel at the sentencing hearing.

CONCLUSION

¶ 38. This case illustrates another peril: how circuit courts must exercise discretion when deciding whether to permit counsel to withdraw. An attorney who represents a defendant in a criminal case may indeed have to continue representing the defendant even after the defendant no longer desires the services of the attorney. An attorney is not entitled to withdraw simply because a defendant makes that request. See State v. Johnson, 50 Wis. 2d 280, 283, 184 N.W.2d 107 (1971). This is especially true when the defendant clearly wants to be represented by counsel. In exercising discretion, the court must consider, among other things, the reason for the request, the stage of-the proceedings, the amount of preparation that has been completed, the cost to the public and the need to avoid delay. Id. The court can impose conditions. For example, it may permit an attorney to withdraw on the condition that another attorney will take over representation within a certain period of time. State v. Batista, 171 Wis. 2d 690, 702, 492 N.W.2d 354 (Ct. App. 1992), overruled in part by Cummings, 199 Wis. 2d at 749 n.12.

¶ 39. The circuit court did not find that Coleman forfeited his right to counsel, nor would the record support that finding. In addition, the court did not find that Coleman was competent to proceed without counsel. Therefore, Coleman's sentence must be vacated. He is entitled to be represented by counsel at resentencing unless he waives or forfeits counsel and is competent to represent himself.

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

       Coleman believed that he suffered some memory problems and some problems controlling his temper as the result of a serious injury.

       Coleman also argues that the circuit court erred by refusing to grant Coleman's request for additional time to obtain counsel. Because our resolution of the previous issues is dispositive of the appeal, we do not address this argument. Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).

       See Wis JI — Criminal SM-30 for a helpful discussion of waiver and forfeiture of counsel.

       The State does not address this argument.


author: ¶ 1. BROWN, J.

text:
    State of Wisconsin ex rel. Bradley Jones and Leonard Morey, Petitioners-Appellants, v. Judy Smith, Warden, Oshkosh Correctional Facility, Respondent-Respondent.
    Court of Appeals

      No. 01-1673.

      Submitted on briefs February 21, 2002.

    Decided March 27, 2002.

    2002 WI App 94
    (Also reported in 643 N.W.2d 548.)

      On behalf of the petitioners-appellants, the cause was submitted on the brief of Jeffrey W. Jensen of Law Offices of Jeffrey W. Jensen, Milwaukee.
    On behalf of the respondent-respondent, the cause was submitted on the brief oí Michael R. Klos, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, Anderson and Snyder, JJ.

       Petition to review denied 6-11-02.

   ¶ 1. BROWN, J.

Bradley Jones and Leonard Mo-rey contend that they are entitled to discharge from their Wisconsin sentences because they were transported through the state of Illinois without use of the Uniform Criminal Extradition Act. This novel argument, based on a fundamental misunderstanding of extradition law, is entirely without merit. We publish this decision as precedent so that no further precious judicial resources need be directed at this theory.

¶ 2. At the time that Jones and Morey filed the habeas corpus petition, they were incarcerated at the Oshkosh Correctional Institution. The habeas corpus petition does not challenge the validity of the judgments of conviction that resulted in their incarceration. Rather, the petition alleges that they were illegally brought into this state without the benefit of the extradition process and that they are therefore entitled to discharge from their Wisconsin sentences.

¶ 3. The petition states that Jones and Morey were transferred in November 1999 to a correctional facility in the state of Texas pursuant to a contract entered into by the Wisconsin Department of Corrections. Wisconsin Stat. § 301.21(1m)(a) (1999-2000) authorizes the department to "enter into one or more contracts with another state... for the transfer and confinement in that state of prisoners who have been committed to the custody of the department."

¶ 4. The petition then asserts that Jones and Morey were brought back to the state of Wisconsin in May 2000, traveling by van through several states, including Illinois. The petition claims that while traveling through Illinois, they demanded that they be released from custody, a request which was ignored. The petition summarizes the claim for relief as follows:

The detention of Petitioners is illegal for the reasons that the State of Wisconsin-intentionally waived jurisdiction over the Petitioners by transporting them through non-contracting states (Illinois, etc.) where the Wisconsin agents had no legal authority to detain the Petitioners. Petitioners demanded to be released and were denied that request. The petitioners were not absconders or fugitives from justice and, therefore, they were entitled to extradition before being forcibly taken from Illinois into the State of Wisconsin.

¶ 5. According to Jones and Morey, the government is required to use the extradition process whenever and wherever prisoners are transported through noncontracting states on their way to incarceration in a contracting state. This is patently absurd with no basis in the law of extradition or Wis. Stat. § 301.21.

¶ 6. Wisconsin Stat. § 301.21(1m)(a) clearly authorizes the department to transfer and confine prisoners in another state. This grant of authority necessarily implies the authority to transfer a Wisconsin prisoner through a sister state while en route to the contracting state. We note the adage that if the exercise of a power is not expressly granted, any reasonable doubt as to the existence of an implied power should be resolved against the department. See DOR v. Hogan, 198 Wis. 2d 792, 816, 543 N.W.2d 825 (Ct. App. 1995). In this case, there can be no reasonable doubt that the grant of authority in § 301.21(1m)(a) would be largely ineffectual if it did not include the implied authority of the department to transfer Wisconsin prisoners through noncontracting states. Id. (agencies may have powers that are necessarily implied from the applicable statutes).

¶ 7. In addition, the transportation of a Wisconsin prisoner through a state does not impinge on the sovereignty of that state. Therefore, as we explain below, no factual predicates exist to form the basis of an extradition proceeding.

¶ 8. The law of extradition finds its genesis in Article iy Section 2, Clause 2 of the United States Constitution and in Wisconsin is implemented by the Uniform Criminal Extradition Act codified in Wis. Stat. § 976.03. Although the Extradition Clause was intended to enable each state to bring offenders to trial as swiftly as possible, it also contemplates the broader objective of promoting comity and national unity:

The purpose of the Clause was to preclude any state from becoming a sanctuary for fugitives from justice of another state and thus "balkanize" the administration of criminal justice among the several states .... In the administration of justice, no less than in trade and commerce, national unity was thought to be served by deemphasizing state lines for certain purposes, without impinging on essential state autonomy.

State ex rel. Graves v. Williams, 99 Wis. 2d 65, 71-72, 298 N.W.2d 392 (Ct. App. 1980) (emphasis omitted).

¶ 9. Both the federal extradition laws and the Uniform Criminal Extradition Act have been interpreted to protect a "substantial right." State ex rel. Niederer v. Cady, 72 Wis. 2d 311, 323, 240 N.W.2d 626 (1976). Contrary to the assertion of Jones and Morey, however, extradition is not a right conferred upon a prisoner; it is a sovereign right of the asylum state, and it is the state, and not the prisoner, which has the privilege to insist on formal extradition. Id. at 317-18. As the Niederer court explained, "[t]he statutory extradition process is a right conferred upon the asylum state whereby, as a sovereign, it may assert its rights to protect its own citizens or persons within its boundaries from unjust criminal actions that may be brought by a sister sovereign state." Id. at 317. A prisoner, therefore, has no right to complain if a sovereignty waives its right to insist on a traditional extradition procedure. Id. at 318.

¶ 10. Applying these concepts to this case, the fact that Jones and Morey were transported through the state of Illinois and returned to the state of Wisconsin without use of the extradition process provides no basis for discharge from their Wisconsin sentences. The state of Illinois may have complained and it could have insisted that the state of Wisconsin use the extradition process. However, since the prisoners were not, in fact, fugitives, but were merely passing through Illinois in the continuing custody of Wisconsin agents, the state of Illinois had no connection to these prisoners and no reason to invoke extradition. There is simply no basis for Jones and Morey to assert a claim in their own right that their custody in Wisconsin is illegal because they were riot extradited from Illinois. •

¶ 11. Correlatively, Jones and Morey assert that the State intentionally waived its jurisdiction over them and constructively discharged them from their sentences when it transported them through Illinois and back to Wisconsin without using the extradition process. This argument is also without merit. The "almost universal" rule is that the transfer of prisoners between states is not a waiver of jurisdiction for trial or punishment unless waiver was "manifestly intended" by one state at the time it yielded custody to another state. State ex rel. Graves, 99 Wis. 2d at 76. It belies common sense to assert that the state of Wisconsin intended to waive its jurisdiction by the act of transporting prisoners through a sister state.

¶ 12. Finally, as the State correctly points out, any failure to properly use the extradition process does not affect the power of the asylum state to try and punish the prisoner. See Niederer, 72 Wis. 2d at 316. As the court in Niederer clarified, a prisoner may be constitutionally tried for a crime when the extradition process is totally ignored and even where the removal from another state is accomplished by force. Id. Therefore, if a prisoner has been found guilty and sentenced in accordance with federal constitutional safeguards, a defect in the extradition process will not result in the discharge of the prisoner's sentence. Id. at 316-17.

¶ 13. The protections afforded to Jones and Mo-rey are not found in the law of extradition but in their right to a fair trial. They do not argue that they were denied constitutional safeguards during their trials and sentencings. Accordingly, the order denying their petition for habeas corpus is affirmed.

By the Court. — Order affirmed.

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

       "A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall, on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime." U.S. Const, art. W § 2, cl. 2.

       When extradition is appropriate or necessary, there are indeed certain statutory rights that are conferred upon persons to be extradited. State ex rel. Niederer v. Cady, 72 Wis. 2d 311, 315, 240 N.W.2d 626 (1976). These rights, however, are not of constitutional dimension, unless it appears that a state has applied statutory provisions arbitrarily and capriciously or in a manner that comprises a denial of equal protection under the law. Id. at 315-16.