author: ANN WALSH BRADLEY, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. James E. Multaler, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 00-1846-CR.

      Oral argument February 5, 2002.

    Decided April 25, 2002.

    2002 WI 35
    (Also reported in 643 N.W.2d 437.)

      For the defendant-appellant-petitioner there were briefs by Jeffrey W. Jensen and Law offices of Jeffrey W. Jensen, Milwaukee, and oral argument by Jeffrey W. Jensen.

      For the plaintiff-respondent the cause was argued by Sandra L. Nowack, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   ANN WALSH BRADLEY, J.

¶ 1. The petitioner, James Multaler, seeks review of a published court of appeals decision affirming his conviction on a plea to 28 counts of possession of child pornography. Police found the pornographic materials in Multaler's house while executing a search warrant for evidence implicating him in a series of homicides. He asserts that the affidavit accompanying the warrant application was insufficient to establish probable cause to believe that items relating to the homicides would be located in his house. In addition, he argues that his plea is invalid because the charges to which he pled are multiplicitous as contrary to the legislatively intended unit of prosecution.

¶ 2. We determine that the affidavit provided a substantial basis to conclude that there was a fair probability that evidence relating to the homicides would be found in Multaler's house. In addition, we determine that the 28 charges to which Multaler pled were not multiplicitous. Accordingly, we affirm the court of appeals.

I — I

¶ 3. This case arises from an investigation of the disappearance and homicide of four young women from Milwaukee in 1974 and 1975. Multaler became a suspect in their homicides. On May 18,1998, more than 20 years after the homicides, police obtained a warrant to search his home for evidence of those crimes. In the course of executing the warrant, police discovered two computer disks containing images of children engaged in sexually explicit activity. Based on the contents of the disks, Multaler was charged with 79 counts of possession of child pornography in violation of Wis. Stat. § 948.12 (1997-98).

¶ 4. Multaler moved to suppress the disks, arguing that the affidavit in support of the warrant to search his house was insufficient to establish probable cause. The circuit court denied Multaler's motion, and Mul-taler subsequently entered an Alford plea to 28 of the 79 counts. The remaining 51 counts were dismissed. Multaler appealed, and the court of appeals affirmed his conviction.

¶ 5. This case presents two issues. First, we must determine whether the affidavit in the application for the search warrant for Multaler's residence was sufficient to establish probable cause to search his home for items related to the homicides. Second, we must determine whether Multaler's plea was invalid because he pled to charges that were multiplicitous. We address each issue in turn.

ii

¶ 6. Multaler asserts that the affidavit in support of the warrant did not establish probable cause to search. Thus, we begin by setting forth the standards implicated in our review of probable cause in the search warrant context.

¶ 7. We accord great deference to the warrant-issuing judge's determination of probable cause, and that determination will stand unless the defendant establishes that the facts are clearly insufficient to support a finding of probable cause. State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991). Thus, "[t]he burden of proof in a challenge to the existence of probable cause for the issuance of a search warrant is clearly with the defendant." State v. Edwards, 98 Wis. 2d 367, 376, 297 N.W.2d 12 (1980).

¶ 8. The duty of the court issuing the warrant is to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before it, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Higginbotham, 162 Wis. 2d at 990. In addition, the warrant judge may draw reasonable inferences from the evidence presented in the affidavit. State v. Benoit, 83 Wis. 2d 389, 399, 265 N.W.2d 298 (1978).

¶ 9. With these considerations in mind, we turn to examine the affidavit in light of Multaler's arguments that it is insufficient. The thrust of the affidavit, submitted by Investigator John Hanrahan, was this: Hanrahan and another detective were investigating the disappearance and subsequent homicides of four young women, Wendy B., Susan W, Sherry M., and Cynthia E, from Milwaukee in 1974 and 1975; Multaler not only killed the four young women but also was a serial killer as evidenced by his behavior that was consistent with that expected of serial homicide offenders; as serial killers are wont to do, he collected and retained various mementos to remind him of the murders, including items taken from the victims; although it was more than 20 years since the time of the murders, these items were likely to be found in his house because serial killers retain such items indefinitely.

¶ 10. In support of his assertion that the affidavit submitted to obtain the search warrant was insufficient, Multaler first argues that the affidavit fails to establish probable cause that he was the killer in the homicides under investigation. He also disputes whether the affidavit establishes that he was a serial killer. Finally, he contends that the affidavit fails to provide probable cause to believe that evidence of the murders would remain in his house more than 20 years later.

¶ 11. Considering all the information in the affidavit and our standard of review, we are satisfied that the affidavit supports a finding of probable cause to search Multaler's house. The affidavit leads us to the conclusion that there was a substantial basis upon which the warrant judge could determine that there was a fair probability that the mementos sought would be found in Multaler's residence at the time the warrant was executed. In short, we determine that Multaler has failed to establish that the affidavit was clearly insufficient to establish probable cause to search.

¶ 12. Multaler first contends that the affidavit fails to establish probable cause to believe that he was the killer. He deems this necessary to a determination of probable cause to believe that his house contained the mementos indicated in the search warrant. The State, in contrast, does not concede that probable cause to search in this case depends upon probable cause to arrest Multaler for the murders. We need not determine whether separate probable cause to arrest was necessary, but disagree with Multaler insofar as we determine that the affidavit supports' a determination of probable cause to believe that Multaler was the killer. The affidavit connected the murders to one another, directly connected Multaler to the murders of two of the women, and circumstantially connected him to all of the murders.

¶ 13. All four victims were white females between the ages of 15 and 21 at the time of their disappearance. They resided in Milwaukee and disappeared within a 16-month time frame. Three of the victims were found in Racine County, and one was found in Milwaukee County.

¶ 14. Each of their bodies showed evidence of rape or other physical assault. Two of the victims were found with their shirts pulled up over their breasts, and another was found with semen in her vagina and blood under her fingernails. Two were strangled to death and another, whose cause of death could not be determined due to decomposition of the body, had numerous contusions on her head and face.

¶ 15. All but one of the victims were missing small personal items. For example, Wendy B. wore a Mickey Mouse watch that was never located. A missing persons report indicated that she was also wearing a braided macramé bracelet, but the bracelet was never found. Susan W was wearing an opal pin on a yellow gold necklace when she disappeared, but the pin and chain were not located.

¶ 16. When Sherry M.'s body was found, she was missing a gold ball-type earring and a pair of eyeglasses, neither of which were ever found. Sherry M. always wore a chain necklace with a butterfly pendant that also never was located. Several items were missing from her purse, including a hairbrush, a bottle of perfume, a picture ID, and photographs of friends.

¶ 17. The affidavit directly connected Multaler to two of the victims. He admitted to being with Wendy B. the night she disappeared. On one occasion he stated he could not recall whether he killed Wendy B., but on another occasion he stated that he felt that he had killed her, that "[i]f she is dead I must have killed her." In addition, when Multaler was asked to describe the clothing Wendy B. was wearing, he described Susan W's clothing instead. Thus, the affidavit directly linked Multaler to both Wendy B. and Susan W

¶ 18. Additionally, the affidavit provided a circumstantial connection between Multaler and Susan W. When her purse was located, a bungee cord was found near it. One of the hooks on the bungee cord was pulled and bent in such a way that the hook was shaped into the form of the letter "L," and Multaler's ex-girlfriend identified it as identical to one she had observed in Multaler's possession.

¶ 19. The affidavit also circumstantially connected Multaler to the third victim, Cynthia F., in two ways. First, a note was found in Cynthia F.'s pocket bearing the name "James McDonald," and Multaler's ex-girlfriend stated that when she was staying with Multaler in 1975, she observed this name on a piece of paper near the telephone.

¶ 20. Second, the circumstances surrounding Cynthia F.'s disappearance were consistent with the circumstances surrounding a 1975 kidnapping for which Multaler was convicted. Specifically, in June 1975, a woman experienced an incident in which she was driving on the freeway when she heard a voice over a loudspeaker from a man in the car behind her. The man said that he was a state police officer and ordered her to pull her car to the side of the road. After approaching her, the man pulled out a pistol, handcuffed her, and threatened to shoot her if she did not comply. He took her to his vehicle, and she asked him to turn off her headlights. When he got out of the car to do so, she drove off in his car. Multaler was identified as a suspect in this incident and subsequently convicted for kidnapping. Similarly, when Cynthia F. disappeared in January 1974, her car was found parked approximately 12 to 14 feet from the curb with its ignition switch in the "accessory" position. Although it was a cold and snowy day, her driver's side window was down.

¶ 21. Finally, the affidavit circumstantially connected Multaler to the fourth homicide victim, Sherry M., although the connection is not as strong as that between Multaler and the other victims. When Sherry M.'s body was found, her wrist bore a mark three-eighths of an inch in width that appeared to have been made by something that was tightly wrapped around it prior to her death, as if she had been handcuffed. According to the affidavit, the width of a pair of handcuffs is three-eighths of an inch, and during the kidnapping for which Multaler was convicted, he used handcuffs on the victim.

¶ 22. Other statements in the affidavit provided further strong links between Multaler and the murders. After a newspaper article appeared detailing Multaler's kidnapping arrest, the Milwaukee County District Attorney received a copy of the article with the following words written at the top: "This man is the South Side Killer ... He has raped 36 girls." A handwriting expert determined that the writing on the article was Multaler's.

¶ 23. The affidavit also showed that the circumstances of some of the murders, which suggested strangulation and violent sex crimes, were consistent with Multaler's sexual proclivities. Multaler admitted that he had choked several of his girlfriends and that after they were weak and helpless, he felt more like a man in his sexual relations with them.

¶ 24. Further, the affidavit stated that Multaler's ex-girlfriend told investigators that before every sexual act, Multaler would place his fingers on her neck and apply pressure, rendering her unconscious. During this state of unconsciousness, Multaler would undress her and begin to have intercourse with her. On a few occasions, he had difficulty reviving her. Likewise, the affidavit explains that Multaler's daughter filed a report detailing years of sexual assaults by Multaler, in which he would "choke her out."

¶ 25. Taken together, all of this information directly connected Multaler to the murders of two of the women, circumstantially connected him to all of the murders, and connected the murders to one another. Thus, we determine that the affidavit supported a finding of probable cause to believe that Multaler was the killer.

¶ 26. Having made this determination, we next address Multaler's argument that the affidavit fails to establish sufficiently that he was a serial killer. In doing so, we turn to the portions of the affidavit focusing on the patterns of behavior of serial homicide offenders and describing Multaler's behavior that was consistent with these patterns.

¶ 27. Investigator Hanrahan explained in the affidavit that serial homicide offenders often do all of the following:

take clothing, jewelry and other property such as photo's [sic], identification and other personal items from their victims. These items are used by the offender to relive and recapture the moment of the homicide event, where often times the offender feels that he now possesses the victim. These items are used by the offender to fuel his fantasies and confirm the victim possession until the fantasy is no longer enough, such that he has to go out and find another victim.
. . . keep newspaper clippings about the death and subsequent police investigation of his [sic] victims. These items also help the offender in his fantasies, and act as proof and reminders of his act.
. . . keep written documentation such as diaries for the reasons detailed above.
. . . take photographs, as well as audio and video recordings of their victims.
. . . keep these items . . . even under intense police investigation. The need to keep these items as reminders and fantasy tools outweighs the risk of being caught by possessing such incriminating evidence.
. . . often times interject themselves into the investigation and or taunt investigators.

¶ 28. The affidavit also established particular instances in which Multaler acted consistent with these traits of serial killers. It stated that Multaler's ex-girlfriend told investigators that he kept an album containing pictures of females and newspaper articles about missing and murdered females. She identified an article detailing the discovery of Susan W's body as possibly being an article in Multaler’s album. His ex-girlfriend also stated that when she lived with Multaler in 1975, she observed in one of his two scrap books an article reporting a fifth strangulation murder in Green Lake to which Multaler may have been linked.

¶ 29. Further, as already noted, Multaler apparently sent the Milwaukee County District Attorney a newspaper clipping indicating that he was the "South Side Killer." He also sent a letter to the Channel 6 news department requesting newspaper clippings or written articles concerning the murders of Cynthia F., Susan W, Wendy B., and Sherry M. At oral argument before this court, Multaler's attorney agreed that the affidavit showed that Multaler had a "fairly unusual interest in these cases."

¶ 30. Thus, the affidavit documented particular instances in which Multaler collected or sought to collect the types of mementos serial killers are known to collect and retain, including instances in which such items were observed in his possession. The affidavit also showed that, consistent with the expected behavior of serial killers, Multaler interjected himself into an investigation of the murders. The instances of his violent sexual behavior with his ex-girlfriend and daughter were also consistent with traits described by Investigator Hanrahan, in particular that serial homicide offenders need to feel a sense of possession over their victims. All of these facts taken together sufficiently establish for purposes of the warrant that Multaler was a serial killer.

¶ 31. Because the affidavit established particular instances in which Multaler exhibited characteristic patterns of behavior typical of a serial homicide offender, it was reasonable for the warrant judge to infer that Multaler would exhibit other characteristics that Investigator Hanrahan indicated were associated with serial homicide offenders. Thus, the judge could reasonably infer that Multaler had taken the missing personal items from the victims and would retain these items.

¶ 32. Multaler's album and scrap books observed by his ex-girlfriend indicated specific instances in which he collected and retained mementos of killings to which he was linked. Tethered to Hanrahan's research and expertise, these facts, along with the other particular instances of Multaler's behaviors, established the reasonable inference that he would be likely to retain the mementos more than 20 years after the murders.

¶ 33. Finally, the affidavit provided reason to believe these mementos would be found in Multaler's house. Investigator Hanrahan stated in the affidavit that Milwaukee police records indicated that Multaler had the same residence for over 20 years. Hanrahan stated that he recently had driven by the house and verified that the two cars parked in the driveway were registered to Multaler's wife and daughter. Thus, assuming that Multaler retained mementos of his killings, the warrant judge had no reason to infer that they would be located anywhere other than in Multaler's house. In sum, considering all of the facts and circumstances set forth in the affidavit, we determine that it provided a substantial basis from which the warrant judge could determine there was a fair probability the items sought in the warrant would be found in Multaler's house.

¶ 34. We emphasize that every probable cause determination must be made on a case-by-case basis, looking at the totality of the circumstances. Even when police suspect an individual is a serial killer, that will not always yield probable cause to search the individual's home. Multaler's case presents unusual facts, and as we have explained, particular circumstances that established probable cause to search his house for specific items incriminating him in the homicides that were under investigation. As Judge Fine concluded in his concurring opinion in support of the court of appeals majority, "[t]he chain of probable cause here is crafted of many sturdy links." State v. Multaler, 2001 WI App 149, ¶ 49, 246 Wis. 2d 752, 632 N.W.2d 89. In another case with different facts, the chain may not be so sturdy.

¶ 35. Multaler nonetheless asserts that the affidavit was insufficient to establish that the mementos would remain in his residence more than 20 years after the homicides. In making this assertion, he first argues that the information in the affidavit was "stale" such that no inference could be drawn that the items the police sought would be located in his home more than 20 years after the murders. We disagree and determine that the concept of staleness is not a bar to probable cause under the unique circumstances of this case.

¶ 36. A distinction must be maintained between stale information and stale probable cause. State v. Moley, 171 Wis. 2d 207, 212, 490 N.W.2d 764 (Ct. App. 1992).

Stale probable cause, so called, is probable cause that would have justified a warrant at some earlier moment that has already passed by the time the warrant is sought.
There is not, however, any dispositive significance in the mere fact that some information offered to demonstrate probable cause may be called stale, in the sense that it occurred well before the date of the application for the warrant.

Id. at 213 (citing State v. Valenzuela, 536 A.2d 1252, 1264 (N.H. 1987)). If old information in a warrant affidavit contributes to an inference that probable cause exists at the time of the application for the warrant, the age of the information is no taint. Id. at 210.

¶ 37. The probable cause determination in the face of a staleness challenge depends upon the nature of the underlying circumstances, whether the activity is of a protracted or continuous nature, the nature of the criminal activity under investigation, and the nature of what is being sought. State v. Ehnert, 160 Wis. 2d 464, 469-70, 466 N.W.2d 237 (Ct. App. 1991). A Maryland case has stated the factors similarly:

The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a halfsmoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later.

Andresen v. State, 331 A.2d 78, 106 (Md. Ct. Spec. App. 1975), aff'd, Andresen v. Maryland, 427 U.S. 463 (1976); see also Wayne R. LaFave, 2 Search & Seizure § 3.7(a), 341 (3d ed. 1996).

¶ 38. These observations illustrate that the concept of staleness is not so much an independent bar to a determination of probable cause as it is a function of the essence of the probable cause determination. " '[S]taleness' is not a separate doctrine in probable cause to search analysis. It is merely an aspect of the Fourth Amendment inquiry." People v. Russo, 487 N.W.2d 698, 707 (Mich. 1992). As with any determination of probable cause to search on a warrant, the determination must be made on a case-by-case basis. See Ehnert, 160 Wis. 2d at 469.

¶ 39. Multaler's position is that these staleness precepts undermine any conclusion that there was a fair probability the items sought in the warrant would be found in his house more than 20 years after the murders. To the contrary, we think they reinforce such a conclusion.

¶ 40. This is a case that depends, in part, upon the unusual tendency of serial homicide offenders, as stated in the affidavit, to collect and retain items that constitute evidence of their crimes. As already explained, the likelihood that Multaler was a serial killer who would retain possession of the items sought, even more than 20 years after the murders, is established sufficiently by the information in the affidavit.

¶ 41. At the time the warrant issued and was executed, the probable cause to search Multaler's house was not stale. The type of criminal behavior being investigated was recurring, entrenched, and continuous. The nature of the criminal activity, serial homicide, and the nature of the items sought, the sort of items likely to be retained indefinitely by the killer, both lead to the conclusion that probable cause to search Multaler's house was not stale. None of the factors outlined in Ehnert or Andresen when applied here leads to a conclusion that the evidence sought would not remain in Multaler's house.

¶ 42. Multaler also advances other arguments in support of his assertion that the affidavit was insufficient to establish that the mementos would be found in his residence when the warrant was executed. He argues that Investigator Hanrahan's opinions cannot be used to support a finding of probable cause because Hanrahan had no personal experience investigating serial killers and because he did not cite the sources upon which he based his opinion. We disagree.

¶ 43. This court has explained on at least one prior occasion that both the experience and special knowledge of police officers who are applying for search warrants are among the facts that the warrant-issuing court may consider. State v. Harris, 256 Wis. 93, 100, 39 N.W.2d 912 (1949). Similarly, other courts have stated that a government agent's expert opinion may be considered by the issuing court when making its probable cause determination. See, e.g., United States v. Rabe, 848 F.2d 994, 997 (9th Cir. 1988). Multaler does not dispute these propositions, and he cites no case law holding that in all cases a warrant affiant must possess both field experience pertaining to the type of crime in question and specialized knowledge obtained through other means.

¶ 44. The affidavit shows that Investigator Han-rahan exhaustively researched and studied the patterns of serial homicide offenders. His statements regarding the typical characteristics of serial killers were based upon a number of expert sources, for which he supplied names, authors, and credentials. In addition, Hanrahan stated in the affidavit that he attended various training courses or symposia on the subject of serial killers, some of which were taught by the experts who had written materials Hanrahan studied.

¶ 45. There can be no question that Investigator Hanrahan possessed specialized knowledge pertaining to traits common to serial killers based on his extensive study of the topic. His lack of previous field experience investigating serial homicide is not a bar to his qualifications to give opinions about the behavior of serial killers for purposes of a warrant.

¶ 46. Nonetheless, Multaler contends that it was necessary for Investigator Hanrahan to cite the sources upon which he relied for the opinions he offered about serial homicide offenders. In Multaler's reply brief, he states, "[i]f Hanrahan's affidavit were a research paper it would be graded as an F."

¶ 47. These assertions misapprehend the nature of the warrant judge's inquiry. An affidavit in support of a search warrant is not a research paper or legal brief that demands citations for every proposition. For purposes of warrant applications, "the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." Illinois v. Gates, 462 U.S. 213, 232 (1983).

¶ 48. Investigator Hanrahan's detailed listing of his sources of information and accompanying credentials, combined with his indication that his opinion was based upon his "training and research" provided a sufficient foundation for the opinion he gave about the behavior patterns of serial killers. At oral argument, even Multaler conceded that the affidavit might be saved by Hanrahan's opinion regarding the propensity of serial killers to keep mementos had it not been rendered infirm by Hanrahan's lack of citation to authority. We see no such infirmity. Rather, we agree with the analysis the State gives in its brief:

The affidavit might have been flawed as conclusory if Hanrahan had merely asserted the general proposition that he was qualified to offer information about serial killers. That is not what Hanrahan did. He identified the authority underlying his statements, and established that his reliance on the sources was reasonable.

¶ 49. In sum, the affidavit provided probable cause to believe that Multaler was the killer in the homicides under investigation. It also sufficiently supported the conclusion that he was a serial killer likely to collect and retain mementos of the killings and that those mementos would remain in his house at the time the warrant was executed.. Neither staleness nor the manner in which Investigator Hanrahan set forth his expertise in the affidavit undermines these conclusions. The affidavit provided a substantial basis to conclude that there was a fair probability that the items the police sought would be found in Multaler's house when the warrant was executed.

I — I h — 1

¶ 50. Next, we turn to Multaler's assertion that he pled to multiplicitous charges. Although the police seized only two computer disks containing child pornography, each disk contained multiple images. Mul-taler was originally charged with 79 counts of possession of child pornography based on the number of images contained on the disks. Ultimately, however, Multaler pled to only 28 counts.

¶ 51. Multaler now argues that the charges were multiplicitous because the legislature did not intend that a separate charge could be levied for each separate pornographic image. He asserts that the legislatively intended unit of prosecution is determined by the number of disks, not the number of images.

¶ 52. Whether a multiplicity violation exists in a given case is a question of law subject to independent appellate review. State v. Koller, 2001 WI App 253, ¶ 32, 248 Wis. 2d 259, 635 N.W.2d 838. This court analyzes claims of multiplicity using a two-part test. State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998). First, we apply Blockburger v. United States, 284 U.S. 299, 304 (1932), asking whether the offenses are identical in law and fact. State v. Derango, 2000 WI 89, ¶ 29, 236 Wis. 2d 721, 613 N.W.2d 833; Anderson, 219 Wis. 2d at 746. Second, if the offenses are not identical in law and fact, we ask whether the legislature intended multiple punishments for the offenses in question. Anderson, 219 Wis. 2d at 746.

¶ 53. The State concedes that the 28 charges of child pornography possession for which Multaler was convicted are identical in law because they fall under the same statute. Turning to the question of whether the offenses are identical in fact, we note, as does the State, that Multaler does not appear to take a position on the question. Rather, he makes his arguments only under the second part of the multiplicity test, asserting that the legislature intended that the proper unit of prosecution was one charge for each disk rather than one charge for each image on the disk.

¶ 54. Taking Multaler's position as a concession that the charges are different in fact, the State asserts that Multaler has waived his multiplicity claim. Although a guilty or no contest plea generally waives all nonjurisdictional defects, including constitutional claims, State v. Riekkoff, 112 Wis. 2d 119, 123, 332 N.W.2d 744 (1983), a double jeopardy defect in the plea is an exception to the waiver rale, State v. Morris, 108 Wis. 2d 282, 284 n.2, 322 N.W.2d 264 (1982). The State refers us to State v. Trawitzki, 2001 WI 77, ¶ 22, 244 Wis. 2d 523, 628 N.W.2d 801, however, in which this court noted that it is only the first part of the multiplicity test that involves the constitutional double jeopardy provisions. Thus, the State reasons, because Mul-taler is relying only on the second part of the multiplicity test, he is not asserting a constitutional claim of double jeopardy and has waived his claim for multiplicity.

¶ 55. We appreciate the careful chain of logic the State has constructed in support of its position on waiver. However, we address Multaler's multiplicity claim on its merits because at least one of the links in the State's chain may be problematic. In particular, although Multaler has not argued that the charges are identical in fact, he has not expressly conceded the issue. The State's position on waiver depends on the assumption that Multaler has made such a concession. The court of appeals addressed the question of whether the charges were identical in fact even though Multaler made multiplicity arguments in his court of appeals briefs similar to those he makes before this court.

¶ 56. Thus, we briefly turn to the question of whether the offenses are identical in fact. The inquiry into whether offenses are identical in fact involves a determination of whether the charged acts are "separated in time or are of a significantly different nature." State v. Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800 (1980). The separate in time inquiry is not resolved by a stopwatch approach. Harrell v. State, 88 Wis. 2d 546, 572, 277 N.W.2d 462 (Ct. App. 1979). Rather, the court asks whether there was sufficient time for reflection between the acts such that the defendant re-committed himself to the criminal conduct. State v. Hirsch, 140 Wis. 2d 468, 475, 410 N.W.2d 638 (Ct. App. 1987).

¶ 57. Similarly, whether the charged acts are significantly different in nature is not limited to a straightforward determination of whether the acts are of different types. Roller, 2001 WI App 253, ¶ 31. Acts may he "different in nature" even when they are the same types of acts as long as each required "a new volitional departure in the defendant's course of conduct." Id. (quoting Anderson, 219 Wis. 2d at 750).

¶ 58. Applying these standards, we agree with the court of appeals that the 28 counts to which Multaler pled were not identical in fact. Although some of the downloaded image files contained multiple images, there were more than 28 separate image files. In a statement given after his arrest, Multaler admitted that he "began downloading ... in the winter of 1998," thus suggesting that he obtained the image files over a period of time. Even had he downloaded all the image files in a very short period of time, the fact that there were more than 28 separate files supports a conclusion that he made a new decision to obtain each one. Every time he downloaded a new file, he recommitted himself to additional criminal conduct. Each decision to download more child pornography represented a new volitional departure.

¶ 59. Having determined that the charges are different in fact, we turn to examine the legislature's intent regarding the allowable unit of prosecution. Where charges are different in fact, we presume that the legislature intended multiple punishments. Anderson, 219 Wis. 2d at 751. This presumption is rebutted only by a clear indication of legislative intent to the contrary. Id. We use four factors to determine legislative intent in a multiplicity analysis: (1) statutory language; (2) legislative history and context; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishments for the conduct. Id.

¶ 60. Multaler focuses on the first and fourth factors and concludes from his application of these two factors that the legislature intended punishment based not upon an image hut upon the medium, in this case computer disks, on which the images were found. However, we determine that Multaler has failed to rebut the presumption that the legislature intended to allow punishment for each image on the disks.

¶ 61. In applying the first factor, we look at the language of the statute. Section 948.12 provides:

Whoever possesses any undeveloped film, photographic negative, photograph, motion picture, videotape or other pictorial reproduction or audio recording of a child engaged in sexually explicit conduct under all of the following circumstances is guilty of a Class E felony....

¶ 62. We do not agree with Multaler that the plain language of the statute allows for prosecution based only upon the medium rather than upon the image. Multaler's own dictionary-derived definitions of "reproduction" undermine his plain language argument. One of the definitions Multaler gives in his brief is that a reproduction is "a copy of something printed, scanned, photographed, or produced by other means." This definition encompasses the images stored on Multaler's disks which themselves are copies of something that was once printed, scanned, or photographed.

¶ 63. In State v. A.H., 211 Wis. 2d 561, 567-68, 566 N.W.2d 858 (Ct. App. 1997), the court of appeals determined that "the focus of the inquiry under [§ 948.12] is the content of the photograph and how it was produced, not the particular location or manner in which it is ultimately stored or kept by the person possessing it." The court in A.H. was not addressing a multiplicity claim and thus A.H. is not on all fours with the issue before us. Nonetheless, the A.H. court made this determination in the course of discerning the legislative intent behind § 948.12, and it is persuasive evidence that Multaler's read of the statute is incorrect.

¶ 64. Nothing in the plain language of Wis. Stat. § 948.12 supports Multaler's position that the legislature intended that a computer disk, rather than an image, is the intended unit of prosecution. Rather, the plain language of the statute provides that a possessor of "any photograph ... or other pictorial reproduction" has violated the statute. Section 948.12 (emphasis added). The singular formulation of these items covered under the statute modified by the term "any" is evidence that the legislature intended prosecution for each photograph or pictorial reproduction. In short, the plain language of the statute leads us to the conclusion that for purposes of the second part of the multiplicity analysis each image Multaler possessed could be prosecuted separately.

¶ 65. Applying the fourth factor, Multaler asserts that it is inappropriate to impose separate punishments for each separate image possessed. In support of this assertion, he provides a number of hypothetical comparisons. For example, he explains that a legislative intent to charge for each image would be devoid of logic in the context of a movie film where possession of one movie could result in thousands of charges, one charge for each frame of the film.

¶ 66. We reject Multaler's assertions that these sorts of examples indicate that the legislature could not have intended multiple punishments in cases involving pornography downloaded from the internet. If the proper unit of prosecution were limited to the disk or other storage device, an individual could possess thousands of images depicting children in sexually explicit activity and face only once charge under § 948.12. We agree with the State's argument that "[i]t is unreasonable to suggest that the legislature intended a single penalty. .. without regard for the volume of child pornography, the time over which it was accumulated, the number of separate volitional acts required to obtain and store it, or the numbers of children victimized." In Multaler's case, where he downloaded, compiled, and stored multiple images over time, multiple punishment is appropriate.

¶ 67. In essence, because it appears that the images on the disks were photographs of actual children, the disks served as electronic photo albums. The language of §948.12 shows that the legislature would deem it appropriate to bring separate charges for separate photographs in a traditional photo album. Similarly, the legislature presumably would deem separate charges appropriate for individual images displayed in an electronic photo album.

¶ 68. Because the two factors upon which Mul-taler relies do not support his assertion that the proper unit of prosecution in his case is determined by the number of disks, he has failed to rebut the presumption that the legislature intended multiple punishments. Therefore, we reject his multiplicity claim.

IV

¶ 69. In sum, we conclude that the 28 charges to which Multaler pled were not multiplicitous. We further conclude that Investigator Hanrahan's affidavit provided a substantial basis to determine that there was a fair probability that- the evidence the police sought in the warrant would be found in Multaler's house. Accordingly, we affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

¶ 70.

DIANE S. SYKES, J., did not participate.

        See State v. Multaler, 2001 WI App 149, 246 Wis. 2d 752, 632 N.W.2d 89 (affirming a judgment and an order of the Circuit Court for Milwaukee County, Jeffrey A. Wagner, Judge).

       The disks were labeled "Child Pornography" and "Child Pornography II." After police discovered the disks, they obtained another warrant authorizing a search of the disks' contents.

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

       An Alford plea is a guilty or no contest plea in which the defendant either maintains innocence or does not admit to the commission of the crime. State ex rel. Jacobus v. State, 208 Wis. 2d 39, 54, 559 N.W.2d 900 (1997); see also North Carolina v. Alford, 400 U.S. 25 (1970).

       In the conclusion section of his brief in chief, Multaler requested that all but one of the charges be dismissed. However, at oral argument, he agreed that under his analysis, two charges could stand, one for each disk.

       In addition, Multaler disputes other aspects of the State's waiver argument. We need not decide whether the State or Multaler is correct since we decide Multaler's multiplicity claim on the merits.

       Our analysis applies to the version of Wis. Stat. § 948.12 in effect at the time of Multaler's conduct resulting in the charges. The legislature subsequently amended § 948.12. See 2001 Wis. Act 16, § 3983. Section 948.12(lm) now provides: "Whoever possesses any undeveloped film, photographic negative, photograph, motion picture, videotape or other recording of a child engaged in sexually explicit conduct under all of the following circumstances is guilty of a Class E felony . ..." The term "recording" for purposes of Wis. Stat. ch. 948 is now defined to include "the creation of a reproduction of an image or a sound or the storage of data representing an image or a sound." 2001 Wis. Act 16, § 3968.

       Although neither party cites the case, we note that in State v. Whistleman, 2001 WI App 189, ¶ 1, 247 Wis. 2d 337, 633 N.W.2d 249, the court of appeals determined that computer disks that store images of child pornography are included within the meaning of the phrase "or other pictorial reproduction" in Wis. Stat. § 948.12. The court in Whistleman, however, was not confronting a multiplicity challenge. Rather, it was determining whether the possession of child pornography on a computer disk was even covered by the language of the statute. The Whistleman court's analysis does not preclude a determination that an image on a disk is itself a "pictorial reproduction."

       Multaler has not asserted that the images in this case originally were created by a means other than photography of actual children, and we need not address the legislative intent with regard to such "virtual" child pornography. See Ashcroft v. The Free Speech Coalition, 122 S.Ct. 1389, _ U.S. _ (2002) (holding overbroad and unconstitutional a provision of the federal Child Pornography Prevention Act that bans virtual child pornography). The Act appears at 18 U.S.C. § 2251 et seq. See Ashcroft, 122 S. Ct. at 1396.

       In State v. Hamilton, 146 Wis. 2d 426, 438-39, 432 N.W.2d 108 (Ct. App. 1988), the court of appeals discussed the legislative intent component of the multiplicity test in the context of Wis. Stat. § 943.37, the statute criminalizing the alteration of serial numbers. The court discussed the singular phrasing of a statute as indicative of a legislative intent to authorize multiple prosecutions. Id.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Theodore F. Mazza, Attorney at Law: Board of Attorneys Professional Responsibility, n/k/a Office of Lawyer Regulation, Complainant, v. Theodore F. Mazza, Respondent.
    Supreme Court

      Nos. 76-0476-D, 83-0843-D.

      Decided April 26, 2002.

    2002 WI 36
    (Also reported in 643 N.W.2d 83.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that Theodore F. Mazza's license to practice law in Wisconsin be reinstated upon certain conditions. The Office of Lawyer Regulation (OLR) and the Board of Bar Examiners (BBE) join in that recommendation.

¶ 2. We adopt the referee's findings of fact and conclusions of law and agree with his recommendation that Theodore E Mazza's license to practice law be reinstated. As conditions of Mr. Mazza's reinstatement, he shall be required to participate in counseling for a period of six months and shall be required to submit to a quarterly audit of his client trust account, at his own expense, for a period of two years. In addition, he shall be required to pay the costs of the reinstatement proceeding.

¶ 3. Theodore Mazza was admitted to practice law in Wisconsin in 1965 and was engaged in private practice in Waukesha county until 1977. In 1978 Mr. Mazza's license to practice law was suspended indefinitely after this court found he had engaged in professional misconduct, including abusing the attorney-client relationship, misusing his trust account, and neglecting the work of clients and failing to respond to their telephone calls. See Disciplinary Proceedings Against Mazza, 82 Wis. 2d 598, 262 N.W.2d 767 (1978).

¶ 4. In March of 1982 Mr. Mazza was convicted of a criminal charge of conspiracy to commit theft, party to a crime, based on acts committed prior to the suspension of his license. A second disciplinary action was filed against him based on the criminal conduct. In March of 1984 his license to practice law was revoked. See Disciplinary Proceedings Against Mazza, 117 Wis. 2d 770, 345 N.W.2d 492 (1984).

¶ 5. On August 14, 2000, Mr. Mazza filed a petition for reinstatement of his license under SCR 22.28. The case was assigned to a referee, pursuant to SCR 22.30. The referee, John Schweitzer, held a public hearing on the reinstatement petition. Various witnesses testified at the hearing. Following the hearing the referee found that Mr. Mazza had paid the costs of the two disciplinary proceedings and had satisfactorily addressed the substance abuse problems that contributed to the behavior for which he was disciplined in those two cases.

¶ 6. The referee found that in preparation for the reinstatement hearing, Mr. Mazza underwent a psychological assessment administered by Burton S. Silber-glitt, Ph.D. Dr. Silberglitt recommended reinstatement on the condition that Mr. Mazza continue counseling for at least six additional months. The referee found that no evidence was presented at the public hearing to cast doubt upon Mr. Mazza's present qualifications to practice law, and he found that except for completing his continuing legal education (CLE) requirements, Mr. Mazza had satisfactorily addressed all of the requirements for reinstatement contained in SCR 22.29(4).

¶ 7. The referee found that Mr. Mazza testified convincingly about the circumstances that led to his past substance abuse problems and criminal behavior. The referee noted Mr. Mazza has become active in Lawyers Concerned for Lawyers and the Lawyers' Assistance Program, has made 100 to 150 presentations on panels regarding the problems of drug addiction and chemical dependency, and helped found Vision Unita Incorporated, an organization dedicated to helping chemically dependent physically disabled persons, particularly in the minority communities of Milwaukee's south side.

¶ 8. The referee noted that OLR accepted the favorable recommendation of the comprehensive psychological evaluation concluded by Dr. Silberglitt. The referee also noted Dr. Silberglitt opined that Mr. Mazza could safely be recommended to return to the practice of law; however, the doctor recommended that Mr. Mazza continue counseling for at least an additional six months. The referee said a fair reading of Dr. Silberglitt's report showed he was concerned about Mr. Mazza's anxiety about returning to the practice of law, and the referee interpreted Dr. Silberglitt's recommendation as a requirement that Mr. Mazza continue counseling for at least six months following his reinstatement to practice.

¶ 9. The referee concluded that the evidence presented by Mr. Mazza, by OLR, and by others at the public hearing indicated that Mr. Mazza could safely be recommended to ithe legal profession, the courts, the public, and this court, as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and an officer of the courts. The referee thus recommended that Mr. Mazza's petition for reinstatement be granted, subject to his completion of 90 CLE credits, his continuation in counseling for six months following his reinstatement, and his paying the costs of the reinstatement proceeding.

¶ 10. After the matter had been submitted to this court an order to show cause was issued asking Mr. Mazza to show cause why, assunling his petition for reinstatement was granted, that as a condition of the reinstatement he should not be required, for a period of two years, to submit to an audit of his client trust account, at his own cost, at least quarterly. Mr. Mazza has informed this court that he has no objection to such a requirement.

¶ 11. After a review of the record we conclude that Theodore F. Mazza has established by clear, satisfactory, and convincing evidence that he has satisfied all the criteria for reinstatement. Accordingly, we adopt the referee's findings of fact and conclusions of law and we agree with the referee's recommendation that Mr. Mazza's license to practice law in Wisconsin be reinstated.

¶ 12. IT IS ORDERED that the petition for reinstatement of the license of Theodore F. Mazza to practice law in Wisconsin is granted, effective the date of this order, upon the condition that he complete 90 CLE credits.

¶ 13. IT IS FURTHER ORDERED that, as a condition of reinstatement, Mr. Mazza be required to participate in counseling as recommended in, and to address the issues identified in, the report of Dr. Silber-glitt, which was made an exhibit in this case. Mr. Mazza is required to authorize his counselor to notify OLR of his participation in the required counseling and of either the completion of the required six-month period or his failure to participate as required. In the event OLR receives information that Mr. Mazza has not complied with this limitation, OLR may issue an order to show cause why Mr. Mazza's license should not be immediately suspended. Upon successful completion of the six-month counseling requirement, the limitation on Mr. Mazza's license shall terminate automatically.

¶ 14. IT IS FURTHER ORDERED that, as a further condition of reinstatement, for a period of two years, Theodore F. Mazza shall submit to an audit of his client trust account, at his own cost, at least quarterly, as required by OLR.

¶ 15. IT IS FURTHER ORDERED that within six months of the date of this order Theodore F. Mazza pay to the OLR the costs of this proceeding. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Theodore F. Mazza to practice law in Wisconsin shall be suspended until further order of the court.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed to the Office of Lawyer Regulation (OLR) and the supreme court rules applicable to the lawyer regulation system were also revised. Unless otherwise stated, references to supreme court rules will be to those currently in effect.

       SCR 22.28 provides: License reinstatement.
      (1) An attorney suspended from the practice of law for nonpayment of state bar dues or failure to comply with continuing legal education requirements or the trust account certification requirement under SCR 20:1.15(g) shall be reinstated pursuant to the rules governing the suspension.
      (2) The license of an attorney suspended for misconduct for less than six months shall be reinstated by the supreme court upon the filing of an affidavit with the director showing full compliance with all the terms and conditions of the order of suspension and the director's notification to the supreme court of the attorney's full compliance.
      (3) The license of an attorney that is revoked or suspended for misconduct for six months or more shall be reinstated pursuant to the procedure set forth in SCR 22.29 to 22.33 and only by order of the supreme court.

       SCR 22.30 provides: Reinstatement procedure.
      (1) The clerk of the supreme court shall select a referee from the panel provided in SCR 21.08, based on availability and geographic proximity to the petitioner's place of residence, and the chief justice shall appoint the referee to conduct a hearing on the petition for reinstatement. In the case of a license suspension, the hearing shall not be held prior to the expiration of the period of suspension.
      (2) The director shall investigate the eligibility of the petitioner for reinstatement and file a response with the referee in support of or in opposition to the petition.
      (3) At least 30 days prior to the hearing, the director shall publish a notice in a newspaper of general circulation in any county in which the petitioner maintained an office for the practice of law prior to suspension or revocation and in the county of the petitioner's residence during the suspension or revocation and in an official publication of the state bar of Wisconsin.
      (4) The notice under sub. (3) shall contain a brief statement of the nature and date of suspension or revocation, the matters required to be proved for reinstatement, and the date, time and location of the hearing on the petition.

       SCR 22.29(4) provides: '
      (4) The petition for reinstatement shall show all of the following:

        (a) The petitioner desires to have the petitioner's license reinstated.
      (b) The petitioner has not practiced law during the period of suspension or revocation.
      (c) The petitioner has complied fully with the terms of the order of suspension or revocation and will continue to comply with them until the petitioner's license is reinstated.
      (d) The petitioner has maintained competence and learning in the law by attendance at identified educational activities.
      (e) The petitioner's conduct since the suspension or revocation has been exemplary and above reproach.
      (f) The petitioner has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards.
      (g) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the courts.
      (h) The petitioner has fully complied with the requirements set forth in SCR 22.26.
      (j) The petitioner's proposed use of the license if reinstated.
      (k) A full description of all of the petitioner's business activities during the period of suspension or revocation.
      (m) The petitioner has made restitution to or settled all claims of persons injured or harmed by petitioner's misconduct or, if not, the petitioner's explanation of the failure or inability to do so.


text:
    In the Matter of Disciplinary Proceedings Against Michele A. Tjader, Attorney at Law. Office of Lawyer Regulation, f/k/a Board of Attorneys Professional Responsibility, Complainant, v. Michele A. Tjader, Respondent.
    Supreme Court

      No. 00-2887-D.

      Decided April 26, 2002.

    2002 WI 37
    (Also reported in 643 N.W.2d 87.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that Attorney Michele A. Tjader receive a public reprimand for professional misconduct. In addition, the referee recommended that the court require Attorney Tjader to reimburse a client for interest on the delayed refund of an attorney fee, and to pay the costs of this proceeding.

¶ 2. We determine that a public reprimand is appropriate discipline for Attorney Tjader's misconduct. We also order Attorney Tjader to make the reimbursement to the client, K.H., as recommended by the referee and to pay the costs of this proceeding.

¶ 3. Attorney Tjader was admitted to practice law in Wisconsin in 1996. She has no prior disciplinary history. The misconduct described herein occurred in connection with Attorney Tjader's representation of a client in a prison/parole matter.

¶ 4. Following a disciplinary hearing the referee made the following findings of fact. In August 1998 K.H. contacted Attorney Tjader. She was seeking legal assistance on behalf of her fiancé, EE., who was incarcerated. Attorney Tjader agreed to represent EE. (hereinafter "client"). As the client was incarcerated during the period of representation, most of the legal discussions occurred between K.H. and Attorney Tjader. K.H. met with Attorney Tjader on October 1, 1998, fully explained the legal situation, and asked if Attorney Tjader could help her. K.H. explained that the client, who had a prior criminal record, was serving two consecutive prison sentences for two burglary charges. He had successfully completed the Department of Corrections' CHOICE program, an intensive alcohol and drug treatment program. Apparently when the client entered the program, successful participants received a transfer to a minimum-security facility and/or a parole board review, thereby making the CHOICE program an "earned release" program. However, when the client completed the program it was no longer considered an "earned release" program such that successful participants no longer received an automatic transfer to minimum security.

¶ 5. K.H. wished to retain Attorney Tjader to effectuate the client's transfer to a minimum-security facility and/or to help him obtain parole. K.H. emphasized that it was important that the matter be resolved quickly.

¶ 6. Attorney Tjader represented that her law firm, then Kalal & Associates, had substantial experience with such matters. She opined that the client had a legitimate case, and agreed to represent the client. The next day Attorney Tjader contacted K.H. by telephone to confirm that she would represent the client, and stated that the appropriate legal procedure was to file a petition for writ of habeas corpus, which she claimed she was in the process of drafting. She further advised K.H. that "[a] 11 of the lawyers in our defense team will work on your case, as needed, to assure that we provide you with the best possible defense." She established a fee arrangement with a "maximum" fee of $5000. K.H. paid an initial retainer of $1000 and was advised that she would be expected to make additional payments of $250 per month beginning November 1, 1998.

¶ 7. At the time of this conversation Attorney Tjader had not handled a case like this and had filed only one habeas corpus petition. Although she had a busy appellate practice with the firm of Kalal & Asso-dates, she spent most of her time doing legal research; this case was significantly different from the cases she usually handled in her practice. Prior to her meeting with K.H. Attorney Tjader had spoken briefly to her supervisor, Attorney Ralph Kalal, and they decided she could proceed with the filing of the habeas corpus petition. They had no substantive legal discussions regarding the matter. Attorney Tjader reviewed one reported case but did no additional legal research and consulted with no other attorneys about the proper procedure for handling such a matter. She acknowledged that at no point did she consider or research the possibility of filing a petition for writ of certiorari, or alternate procedural mechanisms for accomplishing the client's objective.

¶ 8. In a subsequent telephone conference on October 6, 1998, Attorney Tjader spoke directly with the client and confirmed that she would represent him and that she would file a habeas corpus petition on his behalf. She further confirmed with the client that he authorized Attorney Tjader to speak freely with K.H. about the case, such that no attorney-client privilege should apply to inhibit Attorney Tjader's communications with K.H.

¶ 9. By letter dated November 3, 1998, Attorney Tjader's paralegal advised K.H. that the habeas petition would be filed by "Thanksgiving time."

¶ 10. During October, November, and December of 1998, K.H. made repeated attempts to contact Attorney Tjader regarding the status of the petition. She was unable to reach Attorney Tjader directly and Attorney Tjader did not respond to any of the phone messages that K.H. left with Attorney Tjader's secretary and paralegal. Between late November and early December 1998 K.H. left at least six messages for Attorney Tjader because she had not received a copy of the habeas corpus petition she had been told would be filed by Thanksgiving. K.H. eventually succeeded in reaching Attorney Tjader on December 9, 1998. During that telephone conversation K.H. told Attorney Tjader that she was disappointed that Attorney Tjader had not returned her calls. Attorney Tjader apparently indicated that she didn't return the calls because K.H. "always asked the same questions." Attorney Tjader claimed that she was in the process of finalizing the petition. Attorney Tjader made no notes of her initial conference with K.H. or of her telephone conversations with either K.H. or the client. She kept no time records.

¶ 11. Attorney Tjader later claimed that the client made a collect telephone call to her "sometime in November" to request that she "hold off filing the petition. However, the referee discounted this claim, noting that Attorney Tjader had "no record of the charges for such a telephone call, [had] no contemporaneous notes of such a call, nor did she confirm to the client or to K.H. that she would stop work on the case." Both the client and K.H. deny that the client ever made this request.

¶ 12. On January 11, 1999, the client wrote directly to Attorney Tjader asking about several things, including the status of the petition. Attorney Tjader did not respond to his query regarding the petition. In the second week of January 1999 Attorney Tjader told K.H. that the petition had been filed. K.H. contacted the clerk of court and learned that no petition had been filed. When she confronted Attorney Tjader, Attorney Tjader claimed that the petition had been filed and promised to look into the matter herself and to send a copy to K.H. by Federal Express. Attorney Tjader failed to follow through and, in fact, never filed the petition.

¶ 13. On February 11, 1999, K.H. sent a certified letter to Attorney Tjader terminating Attorney Tjader's services and requesting a refund of the legal fees she had paid, as well as a return of the file materials she had given Attorney Tjader. She also wrote to Attorney Tjader's supervisor, Attorney Ralph Kalal, to inform him of the situation and repeated her request for a refund of the legal fees she had paid.

¶ 14. Attorney Kalal responded to K.H. in writing, claiming he could not discuss the matter with K.H. because of attorney client considerations. He refused to adjust the legal charges absent a letter from the client discharging the firm. Attorney Tjader approved this letter despite her knowledge that the client had clearly instructed her that attorney client privilege should not impede any discussions with K.H.

¶ 15. Eventually, after the disciplinary investigation commenced, Attorney Tjader repaid the full amount of the legal fees ($1750) paid by K.H. However, she failed to pay the 5% interest on the fee as requested by the Office of Lawyer Regulation (OLR).

¶ 16. On October 19, 2000, the OLR commenced this disciplinary proceeding with the filing of a complaint against Attorney Tjader. The complaint alleged that Attorney Tjader had engaged in five counts of professional misconduct.

¶ 17. First, the OLR alleged that Attorney Tjader violated SCR 20:1.3 by failing to act with reasonable diligence in representing a client.

¶ 18. Second, the OLR alleged that Attorney Tjader violated SCR 20:1.4(a) by failing to comply with reasonable requests for information.

¶ 19. Third, the OLR alleged that Attorney Tjader violated SCR 20:8.4(c) by conduct involving dishonesty, deceit and misrepresentation.

¶ 20. Fourth, the OLR alleged that Attorney Tjader violated SCR 20:1.1 by acting without legal knowledge, thoroughness and preparation reasonably necessary for representation.

¶ 21. Fifth, the OLR alleged that Attorney Tjader violated SCR 20:1.16(d) by failing to promptly return an advance payment of fees that had not been earned.

¶ 22. Attorney Tjader filed an answer. A referee was appointed and a hearing conducted on May 21 and 22, and June 15, 2001. At the conclusion of the hearing the parties submitted posthearing briefs and responsive briefs. The referee issued written findings of fact and conclusions of law, concluding, on the basis of the facts previously set forth herein, that Attorney Tjader violated SCR 20:1.3, SCR 20:1.4(a), SCR 20:8.4(c), SCR 20:1.1, and SCR 20:1.16(d). Attorney Tjader did not appeal the report and recommendation.

¶ 23. We adopt the referee's findings of fact and conclusions of law. Attorney Tjader's misconduct with respect to her handling of this matter is a serious failing. As discipline for the professional misconduct we impose a public reprimand and order Attorney Tjader to reimburse K.H. in the amount of $132.72 for interest on the delayed refund of attorney fees and to pay the costs of this proceeding, as recommended by the referee.

¶ 24. IT IS ORDERED that Attorney Michele A. Tjader be publicly reprimanded for her professional misconduct.

¶ 25. IT IS FURTHER ORDERED that within 30 days of the date of this order Attorney Michele A. Tjader shall reimburse K.H. in the amount of $132.72. If K.H. is not reimbursed within the time specified, absent a showing to this court of her inability to pay the reimbursement within that time, the license of Attorney Michele A. Tjader to practice law in Wisconsin shall be suspended until further order of the court.

¶ 26. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Michele A. Tjader shall pay to the Office of Lawyer Regulation the costs of this proceeding in the amount of $9396.28. If the costs are not paid within the time specified, and absent a showing to this court of her inability to pay the costs within that time, the license of Attorney Michele A. Tjader to practice law in Wisconsin shall be suspended until further order of the court.

       The referee was particularly troubled by this delay because Attorney Tjader was aware that K.H. would be adversely affected, both financially and emotionally, by the delay in receiving the refund.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed from Board of Attorneys Professional Responsibility (BAPR) to the Office of Lawyer Regulation (OLR) and the supreme court rules applicable to the lawyer regulation system were also revised. Most of the conduct giving rise to this complaint occurred prior to October 1,2000. However, the references to supreme court rules will be to those currently in effect unless specifically noted.

       SCR 20:1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."

       SCR 20:1.4(a) provides that "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."

       SCR 20:8.4(c) provides that "[i]t is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

       SCR 20:1.1 provides that "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

       SCR 20:1.16(d) provides:
      Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.


author: SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

text:
    Karen C. Martin, and Allen H. Martin, Plaintiffs-Appellants-Petitioners, City of Franklin, Involuntary-Plaintiff, v. American Family Mutual Insurance Company, a Wisconsin insurance corporation, Defendant-Respondent, Eric H. Johnsen, Henry Johnsen d/b/a Johnsen Construction, and ABC Insurance Company, the fictitious name for an unknown insurance company, Defendants.
    Supreme Court

      No. 00-2344.

      Oral argument March 7, 2002.

    Decided April 30, 2002.

    2002 WI 40
    (Also reported in 643 N.W.2d 452.)

      For the plaintiffs-appellants-petitioners there were briefs by William M. Cannon, Edward E. Robinson and Cannon & Dunphy, S.C., Brookfield, and oral argument by Edward E. Robinson.

    For the defendant-respondent there was a brief by Timothy J. Pike, Michael J. Wirth and Peterson,

      Johnson & Murray, S.C., Milwaukee, and oral argument by Michael J. Wirth.

   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. This is a review of a published decision of the court of appeals, Martin v. American Family Mutual Insurance Co., 2001 WI App 178, 247 Wis. 2d 386, 634 N.W.2d 127. The court of appeals affirmed the order of the circuit court for Milwaukee County, Victor Manian, Judge, dismissing the claims of Karen C. Martin and Allen H. Martin against Eric Johnsen's insurance company, American Family Mutual Insurance Company, for injuries sustained in an automobile accident.

¶ 2. At the time of the accident Eric Johnsen was driving his father's pickup truck, which was available for Eric Johnsen's regular use. Under his father's liability policy with American Family Mutual Insurance Company, Eric Johnsen was insured as a permitted user of the pickup truck. The present case does not involve coverage under the father's policy but raises the question whether Eric Johnsen is insured under his own insurance policy with American Family while driving his father's vehicle. More specifically, the question of law presented for review is whether the "regular use" exclusion in Eric Johnsen's insurance policy with American Family is invalid under Wis. Stat. § 631.43(1) (1999-2000)."

¶ 3. For the reasons set forth below, we conclude that the two insurance policies do not promise to indemnify an insured against the same loss and therefore § 631.43(1) does not apply to the present case. Accordingly, the decision of the court of appeals is affirmed.

HH

¶ 4. The material facts of the present case are undisputed for purposes of this review. On August 10, 1996, Karen Martin was a passenger in an automobile that was struck from behind by a pickup truck driven by Eric Johnsen. Karen Martin suffered serious and permanent injuries. The pickup truck was owned by Eric Johnsen's father, Henry Johnsen, and was available for Eric Johnsen's regular use in connection with Eric Johnsen's employment by Johnsen Construction. At no time relevant to this case did the father and son reside in the same household.

¶ 5. Henry Johnsen maintained a liability insurance policy on the pickup truck with American Family. This policy indemnified Eric Johnsen for liability incurred as a result of his permitted use of the pickup truck. American Family settled the Martins' claim against Eric Johnsen for the full $150,000 liability limit of Henry Johnsen's policy.

¶ 6. The Martins' damages were in excess of the $150,000 limit of Henry Johnsen's policy, and the Martins seek additional recovery under Eric Johnsen's liability policy with American Family that insured a van that Eric Johnsen owned. Eric Johnsen's van was not involved in the accident. But the Martins want to stack the two policies, that is, they want to aggregate the face amount of the policies. The liability limits under Eric Johnsen's policy are $100,000 per person.

¶ 7. Eric Johnsen's American Family liability policy promises to "pay compensatory damages an insured person is legally liable for because of bodily injury . .. due to the use of a car . . . ." The policy has, however, exclusions from coverage that limit this broad promise to pay damages for the use of a car. Among the exclusions from coverage is the "regular use" exclusion, which provides that American Family is not liable for bodily injuries "arising out of the use of any vehicle . . . furnished or available for regular use by [Eric Johnsen] or any resident of [his] household."

¶ 8. The Martins assert that the "regular use" exclusion in Eric Johnsen's policy with American Family is invalid under Wis. Stat. § 631.43(1) as an "other insurance" provision because both the father's and Eric Johnsen's American Family liability policies promise to indemnify Eric Johnsen against the same loss. The Martins contend that the "regular use" exclusion is, therefore, an invalid provision in the present case under Wis. Stat. § 631.43(1).

II

¶ 9. This appeal involves the interpretation of the insurance policy and the statute.

¶ 10. The interpretation of an insurance policy ordinarily presents a question of law that this court determines independent of the circuit court and court of appeals, but benefiting from their analyses.

¶ 11. Statutory interpretation and the application of a statute to undisputed facts present questions of law that this court determines independent of the circuit court and court of appeals, but benefiting from their analyses.

HH HH HH

¶ 12. Our analysis of this case begins, as it must, with the language of Wis. Stat. § 631.43(1). Section 631.43(1) is not triggered unless and until two or more insurance policies promise to indemnify an insured against the same loss. In pertinent part the statute provides as follows:

Sec. 631.43 Other insurance provisions. (1) GENERAL. When 2 or more policies promise to indemnify an insured against the same loss, no "other insurance" provisions of the policy may reduce the aggregate protection of the insured below the lesser of the actual insured loss suffered by the insured or the total indemnification promised by the policies if there were no "other insurance" provisions.

¶ 13. Stacking two or more policies is logical when the insured has two or more policies protecting against the same loss and expects to receive the proceeds of each policy. Therefore, the determinative question is whether both American Family liability policies promise to indemnify Eric Johnsen against the same loss. To answer this question we must examine the insurance policies and their application to the facts presented. We have repeatedly stated that the determination of whether policies promise to indemnify an insured against the same loss is made on a case-by-case basis.

¶ 14. In the present case, the father's policy with American Family promises to indemnify Eric Johnsen, as a permitted user of the pickup truck, for liability for the injury to the Martins. The question is whether Eric Johnsen's American Family policy promises to indemnify Eric Johnsen for liability for the injury to the Martins when he was driving his father's pickup truck.

¶ 15. Eric Johnsen's policy with American Family explicitly states that Eric Johnsen is not indemnified for liability for his use of a non-owned vehicle that is available for his regular use. Thus Eric Johnsen and American Family did not contemplate American Family insuring Eric Johnsen when he was driving a non-owned vehicle available for his regular use.

¶ 16. The Martins argue that Eric Johnsen's policy promises to indemnify Eric Johnsen for his use of the pickup truck, because the policy provides that American Family "will pay compensatory damages an insured person is legally liable for because of bodily injury. . . due to the use of a car .. . ," The Martins contend that Wis. Stat. § 631.43(1) does not permit American Family to limit this broad coverage by excluding coverage for bodily injuries "arising out of the use of any vehicle . .. furnished or available for regular use by" Eric Johnsen. The Martins reason that giving the "regular use" exclusion effect in deciding the threshold question of whether two or more policies promise to indemnify an insured against the same loss puts the cart before the horse and is illogical and circular.

¶ 17. We are not persuaded by the Martins' reasoning. We conclude that our approach in Agnew v. American Family Mutual Insurance Co., 150 Wis. 2d 341, 441 N.W.2d 222 (1989), governs the present case. In Agnew, the plaintiff was injured while a passenger in a truck owned by Larry Sailor and driven by the owner's son, Scott Sailor. The father owned three vehicles, each of which was insured by a separate liability policy. The coverage and exclusion clauses in the three policies in Agnew are substantially similar to the coverage and exclusion clauses in Eric Johnsen's insurance policy with American Family.

¶ 18. In Agnew, each policy covered the father and the son (as a relative residing in the policyholder's household) for liability for bodily injury due to the use of not only the vehicle specified in the policy but all other vehicles except vehicles owned or regularly used by the policyholder or a relative residing in his household. The question presented was whether all three policies covered the same loss, so that the injured person could stack the three policies.

¶ 19. The Agnew decision makes it clear, contrary to the Martins' argument, that in determining whether the multiple policies promise to indemnify an insured against the same loss, a court must examine the policy's coverage, the exclusions, and the purpose of the applicable exclusion. The purpose of the "drive other car provision" in each of the policies in Agnew was to enable the insurance company to insure the policyholder against liability incurred by the occasional or incidental use of a vehicle not specified in the policy and to exclude liability incurred by reason of the potential or actual habitual use of other vehicles owned by the policyholder. The use of these other owned vehicles by the policyholder would increase the insurance company's risk without a corresponding increase in the premium.

¶ 20. In the present case, unlike in Agnew, the policyholder owns only one vehicle for which he bought insurance and paid premiums and was driving a non-owned vehicle for which a different policyholder paid premiums. This difference is not meaningful, because the purpose of the "regular use" exclusion for a non-owned vehicle in the present case is similar to the purpose of the "drive other car" provision in Agnew.

¶ 21. The purpose of the "regular use" exclusion for a non-owned vehicle is to insure the policyholder against liability incurred by the occasional or incidental use of a vehicle not specified in the policy and to exclude liability by reason of the potential or actual habitual use of a non-owned vehicle by the policyholder. The evident intention of the "regular use" exclusion is to prevent a policyholder from having two or more vehicles actually or potentially used interchangeably but with the policyholder insuring only one of the vehicles, while the premium is based primarily on risks arising from the operation of one vehicle.

¶ 22. In other words, the "regular use" exclusion is designed to prevent a policyholder from purchasing an insurance policy and paying the premium to insure a vehicle while in effect having available two vehicles for regular use — one that the policyholder owns and insures and another that the policyholder does not own but that is available to him for regular use. The potential or actual habitual use of a non-owned vehicle by the policyholder in the present case, just like the potential or actual habitual use of another owned vehicle by the policyholder in Agnew, increases the insurance company's risk without a corresponding increase in the premium.

¶ 23. Applying our reasoning in Agnew to the present case leads to the conclusion that Eric Johnsen's American Family policy does not promise to indemnify him for bodily injuries arising out of driving the father's pickup truck, which was available for his regular use. Only the father's policy covers the loss incurred by Eric Johnsen by reason of his permitted use of the father's pickup truck. Because we conclude that only one policy promised to indemnify Eric Johnsen against the loss incurred while driving his father's pickup truck, we further conclude that Wis. Stat. § 631.43(1) is not applicable to the present case. We therefore affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

       The "regular use" exclusion in Eric Johnsen's policy provides that the insurance company is not liable for bodily injuries "arising out of the use of any vehicle ... furnished or available for regular use by [the insured] or any resident of [his] household."

       Wisconsin Stat. § 631.43(1) provides:
      (1) General. When 2 or more policies promise to indemnify an insured against the same loss, no "other insurance" provisions of the policy may reduce the aggregate protection of the insured helow the lesser of the actual insured loss suffered hy the insured or the total indemnification promised by the policies if there were no "other insurance" provisions.
      All subsequent references to the Wisconsin Statutes are to the 1999-2000 version, unless otherwise indicated.

        State Farm Mut. Auto. Ins. Co. v. Gillette, 2002 WI 31, ¶ 24, 251 Wis. 2d 561, 641 N.W.2d 662.

        Wood v. Am. Family Ins., 148 Wis. 2d 639, 651, 436 N.W.2d 594 (1989).

       The parties agree that the father's pickup truck is a car within the meaning of Eric Johnsen's policy.

       As the court of appeals explained in its decision in the present case, other cases interpreting and applying Wis. Stat. § 631.43(1) do not present the same facts as the present case does, and therefore those cases do not affect our approach in the present case. See Martin v. Am. Family Mut. Ins. Co., 2001 WI App 178, ¶¶ 11-14, 247 Wis. 2d 386, 634 N.W.2d 127.

        Agnew v. Am. Family Mut. Ins. Co., 150 Wis. 2d 341, 343, 441 N.W.2d 222 (1989).

        Agnew, 150 Wis. 2d at 343.

        Agnew, 150 Wis. 2d at 343-44.

         Agnew, 150 Wis. 2d at 349-50.

        Agnew, 150 Wis. 2d at 350.

       For discussions of the purpose of the "regular use" exclusion, see, for example, 8 Lee R. Russ & Thomas F. Segalla, Couch on Insurance §§ 121.64-121.66 at 121-87 to 121-91 (3d Ed. 1999); David B. Harrison, When Is Automobile Furnished or Available for Regular Use Within "Drive Other Car" Coverage of Automobile Liability Policy, 8 A.L.R.4th 387 at § 2 (1981); Lumbermens Mut. Cas. Co. v. Pulsifer, 41 F.Supp. 249, 251 (D. Me. 1941).