text:
    In the Matter of Disciplinary Proceedings Against Susan M. Cotten, Attorney at Law. Board of Attorneys Professional Responsibility, Complainant, v. Susan M. Cotten, Respondent.
    Supreme Court

      No. 00-2192-D.

      Filed April 4, 2001.

    2001 WI 29
    (Also reported in 624 N.W.2d 360.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that Attorney Susan M. Cotten's license to practice law in Wisconsin be suspended for six months for professional misconduct. That misconduct consists of failing to act with reasonable diligence and promptness in representing a client; failing to keep a client reasonably informed about the status of a matter and failing to promptly comply with reasonable requests for information; failing to take steps to the extent reasonably practicable to protect the interests of a client; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and failing to cooperate with the investigation of the Board of Attorneys Professional Responsibility (Board). The referee also recommended that Attorney Cotten be required to pay restitution, with interest, to two clients and that she pay the costs of the proceeding.

¶ 2. We determine that the seriousness of Attorney Cotten's professional misconduct warrants a suspension of her license to practice law for six months.

¶ 3. Attorney Cotten was admitted to practice law in Wisconsin in 1995 and practices in Madison. She has not previously been the subject of an attorney disciplinary proceeding. She did not answer or otherwise appear in this disciplinary proceeding, and the referee, Judith Sperling-Newton, made findings of fact and conclusions of law in response to the Board's motion for default judgment.

¶ 4. The Board's complaint alleged misconduct with respect to three former clients. The first client hired Attorney Cotten as lead counsel to file a construction lawsuit. The client paid Attorney Cotten a $500 retainer and the $182 filing fee. The client's previous attorney was to serve as co-counsel in the case. Although the client left numerous messages with Attorney Cotten inquiring about the status of the case, the client's messages were never answered and Attorney Cotten never drafted a complaint in the matter. Attorney Cotten wrote to the client and co-counsel to indicate she was terminating her representation of the client and was returning the $182 filing fee. Co-counsel received the letter but the client did not. The client learned about the termination letter from co-counsel and made- several requests to Attorney Cotten for an accounting and/or return of the file. Co-counsel eventually obtained the file from Attorney Cotten and Attorney Cotten eventually returned the retainer fee.

¶ 5. Attorney Cotten failed to respond to a letter from a Board staff investigator with respect to the first client's case. She also failed to respond to a number of letters the Board staff sent to her by certified mail. Attorney Cotten also failed to provide requested documents to the District Investigative Committee (DIC) investigators.

¶ 6. The second alleged charge of misconduct set forth in the complaint involved a family who hired Attorney Cotten to defend them in a lawsuit regarding an easement. Attorney Cotten filed an answer to the complaint in the case but failed to appear at a telephone hearing. The circuit court entered a default judgment awarding the plaintiff an ingress and egress easement over the clients' property. The clients, believing that Attorney Cotten had taken care of the matter, were unaware of the easement until a new owner purchased the adjoining property.

¶ 7. The clients subsequently hired Attorney Cotten to defend them in a foreclosure/replevin lawsuit and they paid her a $600 retainer. Attorney Cotten filed an answer but never served it on plaintiff s counsel. The circuit court issued foreclosure and replevin judgments in favor of the plaintiff in excess of $150,000. One of the clients made multiple attempts to contact Attorney Cotten to file a motion to vacate the judgments. Attorney Cotten did not initially return the clients' calls but eventually told them she had taken care of everything. In fact Attorney Cotten had not succeeded in having the judgments vacated. The clients hired successor counsel who was successful in having the judgments vacated. The clients requested a return of their $600 retainer but Attorney Cotten failed to return it.

¶ 8. Attorney Cotten failed to respond to a letter from a Board staff investigator. She also failed to respond to a subsequent letter that Board staff sent to her by certified mail, and she also failed to provide requested documents to DIC investigators.

¶ 9. The third matter alleged in the Board's complaint involved a couple who hired Attorney Cotten to prepare wills for them. The couple executed the wills and paid Attorney Cotten $500. She retained the original wills and did not give the clients copies. The clients repeatedly requested copies of their wills but Attorney Cotten failed to respond to their letters or telephone calls.

¶ 10. Attorney Cotten failed to respond to a letter from a Board staff investigator requesting a response to the clients' grievance. Subsequent investigative letters, including one sent by certified mail, also went unanswered. Attorney Cotten did not follow through with a promise to DIC investigators that she would provide the clients with copies of the wills. She also did not return the $500 payment she received from the clients.

¶ 11. Attorney Cotten was served with an order to answer and complaint in this proceeding on August 14, 2000, by a Dane county deputy sheriff. The clerk of this court mailed her a notice on September 11, 2000, reminding her of her requirement to file an answer to the complaint. On September 14, 2000, Board counsel filed a motion for default judgment and supporting affidavit.

¶ 12. The referee left messages with Attorney Cotten attempting to schedule a telephone status conference in the matter. Attorney Cotten never responded to the messages. On September 27, 2000, the referee conducted the scheduled telephone status conference. Although the referee attempted to reach Attorney Cotten, she was unable to do so.

¶ 13. The referee concluded that by failing to file suit on behalf of the first client, by failing to appear at a telephone hearing and by failing to serve an answer on plaintiffs' counsel in a foreclosure/replevin case, which resulted in judgments of foreclosure and replevin against the second clients, and by failing to properly serve motions to vacate the judgments, Attorney Cot-ten violated SCR 20:1.3.

¶ 14. The referee also concluded that by failing to keep the first and second clients reasonably informed about the status of a matter, failing to comply with reasonable requests for information, and failing to respond to her clients' requests for information, Attorney Cotten violated SCR 20:1.4(a).

¶ 15. The referee further concluded that by failing, upon termination of representation, to take steps to the extent reasonably practicable to protect the interests of the first and third clients, including giving reasonable notice to the client, surrendering papers and property to which the client is entitled and refunding any advance payment of fees that had not been earned, Attorney Cotten violated SCR 20:1.16(d). The referee also concluded that by reassuring the second clients that everything had been taken care of in their foreclosure/replevin lawsuit when, in fact, she had failed to properly serve plaintiff s counsel with motions to vacate judgments against her clients, Attorney Cotten engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation SCR 20:8.4(c).

¶ 16. The referee also concluded that by failing to respond to letters from staff and failing to respond to the DIC's request for documents, Attorney Cotten violated SCR 21.03(4) and SCR 22.07(2) and (3).

¶ 17. The referee concluded that Attorney Cotten was in default in the disciplinary proceeding as a result of her failure to provide an answer within 20 days from the date of service of the complaint, pursuant to SCR 22.12(2).

¶ 18. We adopt the findings of fact and conclusions of law set forth in the referee's amended report and recommendation. Attorney Cotten's misconduct with respect to her handling of the three client matters and her failure to cooperate with the Board's investigation are serious failings warranting a suspension of her license. A six-month suspension of her license to practice law is appropriate discipline for her professional misconduct.

¶ 19. It Is Ordered that the license of Susan M. Cotten to practice law in Wisconsin is suspended for a period of six months, effective May 8, 2001.

¶ 20. It Is Further Ordered that Susan M. Cot-ten comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 21. It Is Further Ordered that Susan M. Cot-ten refund, within 60 days of the date of this order, with interest at 5%, the $600 retainer paid by the second clients for her representation in a foreclosure/replevin matter and the $500 retainer paid by the third clients for her work in the execution of their wills. If these refunds are not made within the specified time, the license of Susan M. Cotten to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 22. It Is Further Ordered that within 60 days of the date of this order Susan M. Cotten pay to the Office of Lawyer Regulation the costs of this proceeding. 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 Susan M. Cotten to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 23. SHIRLEY S. ABRAHAMSON, C.J., did not participate.

       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 and the supreme court rules applicable to the lawyer regulation system were also revised. Since the conduct underlying this- case arose prior to October 1, 2000, the body will be referred to as "the Board" and all references to supreme court rules will be to those in effect prior to October 1, 2000.

       SCR 20:1.3 provides:
      Diligence
      A lawyer shall act with reasonable diligence and promptness in representing a client.

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

       SCR 20:1.16(d) provides:
      (d) 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.

       SCR 20:8.4(c) provides:
      It is professional misconduct for a lawyer to:
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

       Former SCR 21:03(4) provided:
      (4) Every attorney shall cooperate with the board and the administrator in the investigation, prosecution and disposition of grievances and complaints filed with or by the board or administrator.

       Former SCR 22.07(2) and (3) provided:
      (2) During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.
      (3) The administrator or committee may compel the respondent to answer questions, furnish documents and present any information deemed relevant to the investigation. Failure of the respondent to answer questions, furnish documents or present relevant information is misconduct. The administrator or a committee may compel any other person to produce pertinent books, papers and documents under SCR 22.22.

       Former SCR 22.12(2) provided:
      (2) A respondent may by answer plead no contest to allegations of misconduct in the complaint. The referee shall make a determination of misconduct in respect to each allegation to which no contest is pleaded and for which the referee finds an adequate factual basis in the record. In a subsequent disciplinary or reinstatement proceeding, it shall be conclusively presumed that the respondent engaged in misconduct determined on the basis of a no contest plea.


source: Caselaw Access Project

author: JONP. WILCOX, J. ANN WALSH BRADLEY, J. WILLIAM A. BABLITCH, J.

license: Public Domain

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

      No. 99-0230-CR.

      Oral argument January 5, 2001.

    Decided April 5, 2001.

    2001 WI 31
    (Also reported in 624 N.W.2d 363.)

      For the plaintiff-respondent-petitioner the cause was argued by Chris R. Larsen, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    For the defendant-appellant there was a brief by Michael S. Holzman and Rosen and Holzman Ltd., Waukesha, and oral argument by Michael S. Holzman.

   JONP. WILCOX, J.

¶ 1. This case presents two questions. First, we must decide whether the circuit court conducted an appropriate "inquiry" under Wis. Stat. § 97l.08(l)(b)(l997-98) before accepting Tyren E. Black's (Black) no contest plea to a charge of felon in possession of a firearm. Wis. Stat. § 941.29(2). We con-elude that the circuit court did so. Second, we must determine whether the statement in the complaint — accepted by Black at the plea hearing — that he "stated that he handled the pistol" meets the elements of the crime of felon in possession of a firearm. We conclude that it does.

¶ 2. The State charged Black with a two-count criminal complaint. Count one alleged that on December 31, 1997, Black knowingly possessed marijuana and count two alleged that on December 29, 1997, Black, a felon, possessed a firearm in violation of Wis. Stat. § 939.62. The Circuit Court for Milwaukee County, Jeffrey A. Kremers, Judge, accepted Black's no contest pleas to both charges and Black was sentenced. Black then moved to withdraw his no contest plea to the second count, which the Circuit Court for Milwaukee County, Timothy G. Dugan, Judge, denied. In an unpublished opinion, the court of appeals reversed the circuit court's order. State v. Black, No. 99-0239-CR, unpublished slip op. at ¶ 12 (Wis. Ct. App. May 30, 2000).

I — I

¶ 3. The facts are largely undisputed for the purposes of this review. On December 31, 1997, several Milwaukee police officers went to 1928 North 34th Street to investigate a narcotics complaint. The officers were admitted to Felicia Ferguson's (Ferguson) upper residence and given permission to search. During the search, the officers found six bags of marijuana together with a black semi-automatic Ruger pistol between Ferguson's mattress and box spring in her bedroom. Black lived in the lower unit and was Ferguson's boyfriend.

¶ 4. Black informed the police that he owned the marijuana. He also stated that he "handled the pistol on Monday [two days earlier] in Felicia's bedroom," but that he did not know to whom the gun belonged. On January 2, 1998, the State charged Black with possession with intent to deliver a controlled substance and possession of a firearm by a felon. The complaint also charged Black with habitual criminality in violation of Wis. Stat. § 939.62. Black subsequently entered into plea negotiations with the State, wherein the State agreed to dismiss the habitual criminality penalty enhancer as to the second count in exchange for no contest pleas to both counts. Black signed and filed a completed plea questionnaire listing "felon in possession of firearm" as one of the two offenses to which he was entering a no contest plea. In this signed questionnaire, Black acknowledged that: (1) he read the complaint and understood "the elements of the offense and their relationship to the facts in this case and how the evidence establishes [his] guilt;" (2) by pleading guilty he was giving up any possible defenses and the right to challenge the sufficiency of the complaint; (3) he was giving up his "right to make the State prove [him] guilty by evidence beyond a reasonable doubt to each element of the crime charged"; and (4) if the court allowed a plea of no contest, he would be giving up all of the same rights, defenses, and motions that he would give up with a plea of guilty.

¶ 5. On January 26, 1998, prior to Black's plea hearing, the circuit court received a letter from Ferguson. In that letter, Ferguson stated that she purchased the semi-automatic pistol from someone in her neighborhood on December 29, 1997, and further wrote that Black "only touched [the pistol] once looking at it after I purchased it. And at that moment he said to me that I didn't need it."

¶ 6. The circuit court held Black's plea hearing on February 16, 1998. There, the court engaged Black in a colloquy and found that Black was entering his no contest pleas voluntarily and with full knowledge of the nature of the charges and the possible penalties. After so finding, the court asked the parties the following:

THE COURT: May I use the complaint as a factual basis?
MS. CORNWALL [Black's attorney]: Yes.
MS. LOEBEL [Prosecutor]: Yes.
THE COURT: Mr. Black, have you read the complaint?
MR. BLACK: Yes.
THE COURT: You understand that I'm going to use the facts in the complaint as a basis for your plea and sentencing?
MR. BLACK: Yes.

The court then found that a factual basis existed for Black's pleas and accepted them. Black was sentenced to six years on the narcotics charge and two years on the felon in possession of a firearm charge. Black subsequently filed a postconviction motion seeking to withdraw his no contest plea to the firearm charge. The circuit court rejected Black's motion, finding that Black agreed and understood that the court could use the complaint to establish a factual basis for his plea. The court further asserted that Black's admission that he had "handled" the pistol provided an adequate factual basis for the plea.

¶ 7. The court of appeals reversed the circuit court's order, indicating that Ferguson's letter, which stated that Black "only touched [the pistol] once" conflicted with the complaint, which stated that Black "handled the pistol." This, the court concluded, threw into question whether Black's conduct met the elements of the crime of felon in possession of a firearm. See Black, unpublished slip op. at ¶ 8. The court of appeals then stated that it "cannot conclude, as a matter of law, that 'handling' the gun for a brief instance, coupled with the instruction to the owner to get rid of it, constitutes possession." Id. at ¶ 11.

¶ 8. This court then granted the State's petition for review.

II

¶ 9. We review the circuit court's denial of Black's motion to withdraw his no contest plea as to the felon in possession charge under an erroneous exercise of discretion standard. State v. Thomas, 2000 WI 13, ¶ 13, 232 Wis. 2d 714, 605 N.W.2d 836. " [T]his court will find an [erroneous exercise] of discretion if the record shows that the trial court failed to exercise its discretion, the facts fail to support the trial court's decision, or this court finds that the trial court applied the wrong legal standard.'" J.L. Phillips & Assoc. v. E&H Plastic Corp., 217 Wis. 2d 348, 364-65, 577 N.W.2d 13 (1998) (quoting Oosthurg State Bank v. United Sav. & Loan Ass'n, 130 Wis. 2d 4, 11-12, 386 N.W.2d 53 (1986)). To allow Black to withdraw his plea, the circuit court would had to have found that he established by clear and convincing evidence that failure to allow a withdrawal would result in a manifest injustice. Thomas, 2000 WI 13 at ¶ 17. This high standard flows from the State's interest in the finality of convictions. Id. at ¶ 16. The two questions in this case both involve statutory interpretation. Accordingly, we begin by analyzing the first statute at issue, Wis. Stat. § 971.08(l)(b), which requires the circuit court to "[m]ake such inquiry as satisfies it that the defendant in fact committed the crime charged."

A

¶ 10. Statutory interpretation is a question of law that we review de novo. County of Jefferson v. Renz, 231 Wis. 2d 293, 301, 603 N.W.2d 541 (1999). The purpose of statutory interpretation is to discern and give effect to the intent of the legislature. Id. We do so by first looking to the plain language of the statute. Id. When the statutory language clearly and unambiguously sets forth the legislative intent, we may not look beyond the language to determine its meaning. Id. at 301-02. On the other hand, if the statutory language is ambiguous or unclear, we may examine the statute's history, scope, context, subject matter, and objective in our efforts to ascertain the legislative intent. Id. at 302.

¶ 11. As noted, Wis. Stat. § 971.08(l)(b) requires a circuit court to "[m]ake such inquiry as satisfies it that the' defendant in fact committed the crime charged." We have previously observed that § 971.08(l)(b) is a codification of Rule 11(f) of the Federal Rules of Criminal Procedure, which asserts: " '[Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.'" Thomas, 2000 WI 13 at ¶ 19 (citation omitted). Although both statutes utilize the word "inquiry," neither defines it. In the "absence of statutory definitions, this court construes all words according to their common and approved usage, which may be established by dictionary definitions." Lake City Corp. v. City of Mequon, 207 Wis. 2d 155, 162, 558 N.W.2d 100 (1997). The definition of "inquiry" is "a seeking or request for truth, information, or knowledge." Random House Unabridged Dictionary 985 (2d ed. 1993). Interpreting these parallel statutes, we have noted that if a circuit court "fails to establish a factual basis that the defendant admits constitutes the offense pleaded to, manifest injustice has occurred." Thomas, 2000 WI 13 at ¶ 17. In conducting this inquiry into whether there is a factual basis for the offense, "the trial court may consider hearsay evidence, such as testimony of police officers, the preliminary examination record and other records in the case." Morones v. State, 61 Wis. 2d 544, 552-53, 213 N.W.2d 31 (1973). However, "[n]owhere in our case law interpreting Rule 11(f) do we require a judge to make a factual basis determination in one particular manner." Thomas, 2000 WI 13 at ¶ 21.

¶ 12. Similarly, we find no authority for the proposition that Wis. Stat. § 971.08(l)(b) requires a judge to make a factual basis determination in one particular manner or prohibits a judge from utilizing the complaint for that purpose. Instead, we note that the plain language of the statute merely requires the circuit judge to make such inquiry as satisfies "it" — meaning the circuit court — "that the defendant in fact committed the crime charged." Wis. Stat. § 971.08(1)(b); see also Thomas, 2000 WI 13 at ¶ 22 (observing that "[t]he phrase, 'such inquiry,' indicates that a judge may establish the factual basis as he or she sees fit, as long as the judge guarantees that the defendant is aware of the elements of the crime, and the defendant's conduct meets those elements"). Under § 971.08(l)(b), the circuit court is not required to satisfy the defendant that he or she committed the crime charged. Indeed, the defendant evidenced his or her own satisfaction by entering a plea and thereby waiving his or her right to a jury trial.

¶ 13. In the present case, the circuit court's questioning of Black and his counsel on whether it could use the facts set forth in the complaint as a factual basis for the plea — after Black responded affirmatively that he read the complaint — amounted to seeking or requesting the truth, information, or knowledge, about whether or not he committed the offenses in question. His counsel — likewise responded that the circuit court could use the criminal complaint as a factual basis for the pleas. As we have previously ruled, "a factual basis is established when counsel stipulate on the record to facts in the criminal complaint.” Id. at ¶ 21.

¶ 14. In essence, Black urges us to overturn this rule and find that a circuit court cannot find a factual basis for a plea in the complaint alone. We find no law in support of Black's position. To be sure, a circuit court may look beyond the complaint to the record in a Wis. Stat. § 971.08(l)(b) factual basis inquiry, but Black does not cite any authority that requires a circuit court to do so. We decline to hamstring circuit courts by overturning our precedent and ruling that they may not find a factual basis for a plea in the complaint. Moreover, we decline to rewrite § 971.08(l)(b) as requiring the circuit judge to conduct a mini-trial at every plea hearing to establish that the defendant committed the crime charged beyond a reasonable doubt. If the facts as set forth in the complaint meet the elements of the crime charged, they may form the factual basis for a plea.

¶ 15. Black counters that the proposal he urges would not have burdened the circuit court in the present case. The circuit court, Black argues, would have merely had to ask him "a few brief questions," which would have resolved the matter of whether he possessed the pistol. Black's argument, however, collapses under scrutiny. First, it misapprehends the nature of a no contest plea. A no contest plea:

differs from a plea of guilty in its collateral effects. Because a plea of guilty is an unqualified express admission by the defendant it may be used against him in a collateral or subsequent civil action; but a plea of nolo contendere [no contest] is not such an admission against interest and may not be used in a subsequent or collateral civil action for that purpose.

Lee v. State Bd. of Dental Exam'rs, 29 Wis. 2d 330, 334, 139 N.W.2d 61 (1966). A criminal defendant, by pleading no contest, declines to exercise his or her right to put the State to their burden of proving him guilty beyond a reasonable doubt, but does not admit unqualified guilt. Perhaps the defendant is concerned about possible collateral effects; perhaps the defendant does not want to make an admission of guilt. Regardless, when a defendant enters a no contest plea, he or she is not required to admit his or her guilt to every charge, which is precisely the advantage of entering a no contest plea instead of a guilty plea. Accordingly, the circuit court need not ask the defendant to admit his or her guilt to every charge. Even so, a no contest plea is "an implied confession of guilt for the purposes of the case to support a judgment of conviction and in that respect is equivalent to a plea of guilty." Id. Therefore, Black's no contest plea — coupled with the questionnaire and the colloquy — was sufficient to support his conviction of the second charge, as long as the facts set forth in the complaint met the elements of the offense.

¶ 16. Moreover, there is no factual matter that needed to be resolved here. As further delineated below, even though the complaint utilizes the verb "handled" rather than the verb "touched," both could indicate that Black possessed the pistol, contrary to Wis. Stat. § 941.29(2)(a). Nonetheless, a factual basis for a plea exists if an inculpatory inference can be drawn from the complaint or facts admitted to by the defendant even though it may conflict with an exculpatory inference elsewhere in the record and the defendant later maintains that the exculpatory inference is the correct one. See, e.g., State v. Spears, 147 Wis. 2d 429, 435, 433 N.W.2d 595 (Ct. App. 1988); In re Guilty Plea Cases, 235 N.W.2d 132, 145 (Mich. 1975). This is the essence of what a defendant waives when he or she enters a guilty or no contest plea. Therefore, the circuit judge properly utilized the complaint as a factual basis for the plea, thereby making "such inquiry as satisfies [the court] that the defendánt in fact committed the crime charged." Wis. Stat. § 971.08(1)(b).

B

¶ 17. Black, however, argues that his conduct did not meet the elements of the crime charged, felon in possession of a firearm. Wis. Stat. § 941.29(2)(a). He, as does the court of appeals, relies on the language in Ferguson's letter that he "only touched [the pistol] once looking at it after. . .[Ferguson] purchased it. And at that moment he said to. . .[Ferguson] that. . .[she] didn't need it." According to Black, this language casts doubt upon whether he possessed the firearm as required by § 941.29(2)(a) and, therefore, he should be allowed to withdraw his no contest plea.

¶ 18. Section 941.29(2) of the Wisconsin Statutes states that someone who has been previously convicted of a felony "is guilty of a Class E felony if he or she possesses a firearm. . .subsequent to the conviction for the felony." This crime has two elements: (1) the defendant has been convicted of a felony; and (2) the defendant possessed the firearm. It is undisputed that Black previously has been convicted of a felony; thus, the only question for the circuit court was whether he possessed the firearm.

¶ 19. At the outset, we note the absence of any mens rea requirement in this statute. That is, the statute makes no reference to intent and therefore creates a strict liability offense. State v. Dundon, 226 Wis. 2d 654, 664, 594 N.W.2d 780 (1999); State v. Coleman, 206 Wis. 2d 199, 207, 556 N.W.2d 701 (1996). As a result, the State is only required to show that the felon "possessed" the firearm with knowledge that it is a firearm. In this context, "possess," according to the legal definition, simply "means that the defendant knowingly had actual physical control of a firearm." Wis JI — Criminal 1343 (1997); see State v. Loukota, 180 Wis. 2d 191, 201, 508 N.W.2d 896, (Ct. App. 1993) (determining that this definition of possession was appropriately given and that Wis. Stat. § 941.29(2) does not require ownership, just mere possession). Furthermore, there are no temporal limitations in this statute. It does not specify what length of time a felon must possess the firearm in order to violate the statute. While to some it may seem unduly harsh that a felon who handles a firearm for a brief period violates this statute, such a result comports with the theory of strict liability. As we have explained:

The basic concept of strict liability is that culpability is not an element of the offense and that the state is relieved of the burdensome task of proving the offender's culpable state of mind. . ..
. . .One of the objectives of the legislature in adopting the concept of strict liability in statutes designed to control conduct of many people, such as operating motor vehicles is to assure the quick and efficient prosecution of large numbers of violators.

State v. Brown, 107 Wis. 2d 44, 53-54, 318 N.W.2d 370 (1982). The statute at issue here, felon in possession of a firearm, applies to all felons and is designed by the legislature to control their conduct: it aims to prevent felons from possessing firearms. Wis. Stat. § 941.29(2). This is so "because the legislature has determined that felons are more likely to misuse firearms." Coleman, 206 Wis. 2d at 210. We have further recognized that this statute is "aimed not at punishment but at protecting public safety through firearm regulation." State v. Thiel, 188 Wis. 2d 695, 706-07, 524 N.W.2d 641 (1994). With this goal in mind, the legislature struck a balance between the possibility of a harsh result to an individual felon and the greater good of protecting the public from felons with firearms. We decline to upset this balance by rewriting the statute with an intent requirement. In the present case, the complaint stated that Black "handled the pistol," which is sufficient to show possession because such an action amounts to exercising actual physical control over the firearm, even though it may have been only for a brief period of time.

¶ 20. Black, however, urges us to rewrite the statute by arguing that intent is inherent in the concept of possession. In the present case, Black asserts, he only innocently touched the pistol. For support, he turns to the Wisconsin jury instructions, which state that " '[possession' means that the defendant knowingly had actual physical control of the item." Wis JI — Criminal 920 (1997). From this and the accompanying footnotes, Black blurs and mixes the language to argue that in order "to possess a firearm under Wis. Stat. § 941.29(2)(b) the possessor must have some right or dominion of control over the object or an intent to exercise this control over the weapon." We reject Black's attempt to insert an intent requirement into § 941.29(2)(b). The word "knowingly" in the instruction does not refer to a degree of culpability; rather it refers to conscious possession. See Wis JI—Criminal 920 n.1; Doscher v. State, 194 Wis. 67, 69, 214 N.W. 359 (1927). With other common possession offenses, such as a narcotics possession offense, the defendant may claim that he or she was unaware that a bag of white powder that he or she handled contained cocaine rather than baking soda. See United States v. Kottmyer, 961 F.2d 569, 574 (6th Cir. 1992) (observing that defendant would not have been convicted of possession of cocaine because he would have possessed pure baking soda). Here, however, Black does not claim that what he handled was not a firearm or that he was unaware that it was a firearm. Rather, the implicit thrust of his argument — and Ferguson's letter — is that Black did not touch the pistol with malicious intent. Instead, Black may have only handled the pistol for a brief period and then he may have informed Ferguson that she did not need it. Felon in possession of a firearm, however, precludes him from handling a firearm because of his status as a felon. Under this test, his intention in handling the firearm is irrelevant in determining whether he violated the statute.

¶ 21. That is not to say that in every circumstance where a felon handles a firearm he or she will have violated Wis. Stat. § 941.29(2)(b). A felon who violates § 941.29(2)(b) may be able to assert one of the six privileges enumerated in Wis. Stat. § 939.45 by way of a defense. Indeed, Black attempts to raise § 939.45(6), which allows a defendant who committed a criminal act to claim a defense when his or her "conduct is privileged by the statutory or common law of this state." However, there is no statute or case that Black can cite as privileging his handling of the pistol contrary to the strict liability offense created by § 941.29(2)(b). As a result, he does not have a privilege under § 939.45(6).

I I I

¶ 22. In conclusion, because the circuit court could utilize the complaint as a factual basis for Black's plea and the facts set forth therein that Black "stated that he handled the pistol" meet the elements of the offense, we hold that there was no erroneous exercise of discretion by the circuit court in denying Black's motion to withdraw his plea as to the second count. We therefore reverse the decision of the court of appeals.

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

ANN WALSH BRADLEY, J.

¶ 23. (concurring). I agree with the majority that the circuit court conducted an appropriate inquiry under Wis. Stat. § 971.08(1)(b) in accepting Black's plea. I also agree that Black's statement in the complaint satisfies the elements of the crime of felon in possession of a firearm. Accordingly, I join in the majority opinion. I write separately because I feel the majority's characterization of the crime of felon in possession as a strict liability crime overshadows the fact that the crime does indeed require proof of a mental state.

¶ 24. Felon in possession of a firearm requires proof of possession. Possession under Wisconsin law requires that the "defendant knowingly had the item under his actual physical control." Wis JI—Criminal 920; see also Doscher v. State, 194 Wis. 67, 69, 214 N.W. 359 (1927). As the majority notes, the "knowingly" requirement means conscious possession. Majority op. at ¶ 20.

¶ 25. What the majority does not clearly explain is that knowledge is a mental state required to establish the offense. See Wis. Stat. § 939.23(2). As a crime having a requisite mental state, the crime is not a true strict liability offense. See Staples v. United States, 511 U.S. 600, 607-08 n.3 (1994) (explaining that "strict liability" is a misnomer where crime actually requires proof of knowledge). While this court has used the "strict liability offense" in describing the crime of felon in possession of a firearm in the past, these statements highlighted the lack of a specific intent or the requirement of "culpability or bad purpose" and not the lack of a mental state in its entirety. See State v. Dundon, 226 Wis. 2d 654, 664, 594 N.W.2d 780 (1999).

WILLIAM A. BABLITCH, J.

¶ 26. (dissenting). I respectfully dissent for two reasons. First, the majority fails to recognize, nor follow, well settled law that at a plea inquiry the court must determine whether the defendant's conduct does not amount to a defense. Second, in relying solely on one sentence in the complaint that the defendant admitted that he "handled" the gun, the circuit court failed to determine whether the facts constitute the offense of felon in possession of a firearm.

( — I

¶ 27. It is well settled law in this state that the judge, at a plea inquiry, must determine whether the facts, if proved, "constitute the offense charged and whether the defendant's conduct does not amount to a defense." Edwards v. State, 51 Wis. 2d 231, 236, 186 N.W.2d 193 (1971) (emphasis added), cited with approval in Morones v. State, 61 Wis. 2d 544, 552, 213 N.W.2d 31 (1973) ("What is required is a sufficient postplea inquiry to determine to the court's satisfaction that the facts, if proved, 'constitute the offense charged and whether the defendant's conduct does not amount to a defense.'"); see also Broadie v. State, 68 Wis. 2d 420, 423, 228 N.W.2d 687 (1975). The majority does not cite any of the above cases, much less overrule them.

¶ 28. As pointed out in the majority opinion, there are six privileges that, if present, constitute a defense to this charge, including coercion, necessity, and defense of persons or property. See majority op. at ¶ 21 (citing Wis. Stat. § 939.45). It is not difficult to imagine a myriad of circumstances that would constitute a defense.

¶ 29. The circuit court made no inquiry whatsoever. The circuit court, and the majority, rely solely on the following sentence in the complaint: "Defendant further stated that he had handled the pistol on Monday in Felicia's bedroom, but he doesn't know to who [sic] the gun belonged to." A simple question— "Why did you handle it?" —would have resolved the problem of any defenses. It was not asked.

¶ 30. The majority opinion, in its attempt to deal with possible defenses, acknowledges that a felon may assert one of six privileges to the charge of possession. Majority op. at ¶ 21. However, then the majority states that there is not a statute or a case that Black can cite as privilege, concluding that "As a result, he does not have a privilege." Respectfully, this statement appears to be a non sequitur. I do not understand the point the majority is trying to make, but if the point is that the defendant bears the burden of establishing a privilege, the majority is incorrect. See Broadie, 68 Wis. 2d at 423; Morones, 61 Wis. 2d at 552; Edwards, 51 Wis. 2d at 236. The court must make an inquiry as to whether the defendant's conduct does not amount to a defense.

I I — I

¶ 31. The gist of the majority opinion is that "handling" amounts to "possession" of a firearm. I disagree.

¶ 32. In State v. Bodoh, 226 Wis. 2d 718, 736, 595 N.W.2d 330 (1999), we unanimously upheld a conviction for the negligent handling of a dangerous weapon under Wis. Stat. § 940.24. In defining "handling," we noted that this word may encompass different meanings, including " 'to operate with the hands; manipulate'" or " '[t]o deal with or have responsibility for; conduct.'" Id. at 731 (citation omitted). In comparison, we have held that "possession" requires "some right of dominion or control over the thing possessed." Schwartz v. State, 192 Wis. 414, 417, 212 N.W. 664 (1927). Thus, it was error for the court to rely on the mere allegation of "handling" in the complaint in establishing a factual basis because, by itself, this word may encompass conduct that does not rise to the level of dominion or control over the thing possessed.

¶ 33. Further, possession requires that the defendant knowingly have actual physical control of the item. Wis JI — Criminal 1343 (2000). Standing alone, the word "handling" does not provide any indication as to whether Black "knowingly" possessed the firearm. Such possession connotes a defendant's "conscious" possession. See Doscher v. State, 194 Wis. 67, 69, 214 N.W. 359 (1927). In other words, as to the nature of one's conduct, "knowingly" requires that, a person is aware that his or her conduct is of that nature. 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.5(b) (1986). Again, there is nothing inherent in the word "handling" to show that Black was aware that his conduct constituted actual possession of the firearm. The facts could have displayed a momentary "handling," which may have been too slight or negligible to show conscious possession.

¶ 34. An inquiry into the facts could have also possibly revealed Black's lack of knowledge as to the thing possessed. For example, the firearm could have been contained in a package, and Black's "handling" could have constituted his unsolicited and temporary receipt of the package from Ferguson without his knowledge of the contents. Such facts would not amount to conscious possession. Cf. Kabat v. State, 76 Wis. 2d 224, 229, 251 N.W.2d 38 (1977) (burnt traces of marijuana in a pipe were not sufficient to impute knowledge that the substance contained ingredients of marijuana to sustain a conviction of possession of a controlled substance).

¶ 35. The allegations in the complaint also do not present circumstances that are sufficient to support an inference that Black exercised control over or intended to possess the firearm, i.e., to show constructive possession. See State v. Allbaugh, 148 Wis. 2d 807, 812, 436 N.W.2d 898 (Ct. App. 1989) (quoting Wis JI—Criminal 920, Comment (1987)). Mere proximity of Black to the firearm is insufficient to support a finding of possession of the firearm. Id. In this case, despite any proximity that Black had to the firearm, the allegations in the complaint do not provide any indication of Black's control over or intent to possess the firearm. In fact, the complaint states that Black claimed no ownership of the firearm. For these reasons, constructive possession was not shown.

¶ 36. I recognize that the circuit court's insufficient inquiry was in all likelihood the result of an overloaded calendar and an effort by a hard-working judge to complete the calendar. However, oversights can occur. This record cannot support the crime charged.

¶ 37. Collectively, these factors show a serious flaw in the fundamental integrity of the plea because the court failed to determine whether the defendant committed the crime charged. See State v. Thomas, 2000 WI 13, ¶ 16, 232 Wis. 2d 714, 605 N.W.2d 836. A manifest injustice resulted for the defendant. Withdrawal of Black's plea is necessary to correct the manifest injustice. See State v. Johnson, 207 Wis. 2d 239, 244, 558 N.W.2d 375 (1997). As a result, the court of appeals' decision should be affirmed, and this case remanded with directions to the circuit court to withdraw Black's no contest plea.

¶ 38. Finally, I disagree with the majority opinion's assertion that a circuit court has less of a responsibility to establish a factual basis if the defendant pleads no contest. The majority does not cite any authority for this proposition, and this assertion is in direct contravention of the clear language of Wis. Stat. § 971.08(1). This statute specifically states that "[b]efore the court accepts a plea of guilty or no contest, it shall. . .[m]ake such inquiry as satisfies it that the defendant in fact committed the crime charged." Wis. Stat. § 971.08(l)(b) (emphasis added). The fact that Black entered a no contest plea rather than a plea of guilty has no bearing on the court's responsibilities under § 971.08(1). See State v. Higgs, 230 Wis. 2d 1, 10-11, 601 N.W.2d 653 (Ct. App. 1999) (defendant challenged the factual basis for his no contest plea; the court applied the same standards that exist for a challenge to a guilty plea).

¶ 39. For the reasons stated, I respectfully dissent.

¶ 40. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.

       All subsequent references to the Wisconsin Statutes will be to the 1997 — 98 version unless otherwise indicated.

       Black does not challenge his no contest plea to the first count, marijuana possession with intent to deliver.

       The dissent accurately notes that "[t]he fact that Black entered a no contest plea rather than a plea of guilty has no bearing on the court's responsibilities under § 971.08(1)." Dissent at ¶ 38. Clearly, in both situations, the circuit court must satisfy itself that a factual basis exists for the plea, as required by Wis. Stat. § 971.08(1). However, asking the defendant to admit his guilt to every charge is only one way — and possibly not an exhaustive way — for the circuit court to satisfy itself "that the defendant in fact committed the crime charged." Wis. Stat. § 971.08(1). In contrast, where the defendant has pled no contest, the circuit court would not ask the defendant to admit his or her guilt to every charge.

       We note that the court of appeals' majority opinion confused Ferguson's letter with the presentence report. According to the court of appeals, the letter states "that Black only touched it once to look at it, and told [Ferguson] to get rid of it." State v. Black, No. 99-0230-CR, unpublished slip op. at ¶ 8 (Wis. Ct. App. May 30, 2000). As the State observed in its brief, the phrase that Black "told her to get rid of it" was not in Ferguson's letter, but rather in the presentence report, which contained Black's version of the facts. Rather than supporting Black's argument, Black's order to Ferguson — that he "told her to get rid of [the pistol]" — would actually bolster the State's position for he was exercising control over the firearm. See id. at ¶ 29 (Schudson, J., dissenting).

         Mens rea is "[t]he state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness." Black's Law Dictionary 999 (7th ed. 1999),

       We construe the facts favorably to Black only to clarify what constitutes possession under the statute, not as a mode of analysis that courts should employ where a defendant seeks to withdraw his or her plea post-sentencing.

       The six privileges under Wis. Stat. § 939.45 in part are:
      (1) When the actor's conduct occurs under circumstances of coercion or necessity so as to be privileged under § 939.46 or 939.47; or
      (2) When the actor's conduct is in defense of persons or property under any of the circumstances described in § 939.48 or 939.49; or
      (3) When the actor's conduct is in good faith and is an apparently authorized and reasonable fulfillment of any duties of a public office; or
      (4) When the actor's conduct is a reasonable accomplishment of a lawful arrest; or
      (5) ...
      (b) When the actor's conduct is reasonable discipline of a child by a person responsible for the child's welfare. Reasonable discipline may involve only such force as a reasonable person believes is necessary. It is never reasonable discipline to use force which is intended to cause great bodily harm or death or creates an unreasonable risk of great bodily harm or death.
      (6) When for any other reason the actor's conduct is privileged by the statutory or common law of this state.

       The dissent correctly notes that the court must satisfy itself that the facts that form the basis of the defendant's no contest or guilty plea constitute the offense charged or do not amount to a defense. Dissent at ¶ 30; see Morones v. State, 61 Wis. 2d 544, 552, 213 N.W.2d 31 (1973). Therefore, it is not the defendant's burden in establishing a privilege on the facts that form the basis of the plea at the plea hearing. But Black now seeks to withdraw his plea; accordingly, he bears the burden to establish by clear and convincing evidence that failure to allow a withdrawal of his plea would result in a manifest injustice. State v. Thomas, 2000 WI 13, ¶ 17, 232 Wis. 2d 714, 605 N.W.2d 836. Furthermore, there is no authority supporting the proposition that handling a firearm amounts to a defense to the crime of felon in possession of a firearm.

       The dissent further asserts that "[i]t is not difficult to imagine a myriad of circumstances that would constitute a defense." Dissent at ¶ 28. While that certainly is true, none of the circumstances that may constitute defense are present in the complaint, to which Black pled no contest. Moreover, none of the circumstances that would constitute a defense are in the record. Therefore, although "[t]he court must make an inquiry as to whether the defendant's conduct does not amount to a defense," the facts, as admitted by the defendant, still must give rise to a defense. Dissent at ¶ 30. There are no such facts admitted by Black here.


author: N. PATRICK CROOKS, J.

text:
    Sandra L. Shirk, Plaintiff-Appellant, v. Bowling, Inc., Defendant-Respondent-Petitioner.
    Supreme Court

      No. 98-3634-FT.

      Oral argument January 3, 2001.

    Decided April 11, 2001.

    2001 WI 36
    (Also reported in 624 N.W.2d 375.)

      For the defendant-respondent-petitioner there were briefs by Scott C. Beightol, Brenda S. Kasper and Michael Best & Friedrich LLP, Milwaukee, and oral argument by Scott C. Beightol.

    For the plaintiff-appellant there was a brief by Russell C. Brannen, Jr., and O'Neil, Cannon & Holl-man, S.C., Milwaukee, and oral argument by Russell C. Brannen, Jr.

   N. PATRICK CROOKS, J.

¶1. The issue presented by this case is whether a circuit court may deny a motion for default judgment based on the preemptive use of the statute governing relief from judgments, Wis. Stat. § 806.07(1)(1995-96), when the party opposing the motion claims excusable neglect for its untimely answer. Petitioner, Bowling, Inc. (Bowling), seeks review of an unpublished decision of the court of appeals, Shirk v. Bowling, Inc., No. 98-3634-FT, unpublished slip op. (Ct. App. Oct. 12, 1999). The court of appeals reversed a circuit court order which denied a motion for default judgment brought by Sandra Shirk (Shirk) based on Bowling's lack of a timely answer to her complaint. The circuit court, Judge Charles F. Kahn presiding, denied Shirk's motion based on the preemptive use of Wis. Stat. § 806.07(1). The court concluded that it would be compelled to reopen the case if Bowling brought a motion to vacate the judgment under § 806.07. After denying Shirk's motion for default judgment, the court granted summary judgment in favor of Bowling. Shirk appealed the summary judgment to the court of appeals. The court of appeals reversed, holding that the circuit court applied the wrong legal standard in denying Shirk's motion for default judgment. According to the court of appeals, the circuit court should have addressed whether Bowling established excusable neglect for its untimely answer, and should not have relied upon the policy against default judgments, which favors allowing parties to have their day in court.

¶ 2. We hold that the circuit court, based on the preemptive use of Wis. Stat. § 806.07(1), properly denied Shirk's motion for default judgment. We further hold that Bowling established excusable neglect under Wis. Stat. § 806.07(l)(a) due to the fact that, when read together, the summons and the notice of service were confusing or misleading. Accordingly, we reverse the decision of the court of appeals, and the cause is remanded to the court of appeals.

¶ 3. This case arose out of a post-employment dispute between Shirk and Bowling. Shirk filed a complaint against Bowling after Bowling terminated her as its Chief Executive Officer (CEO), seeking a lump sum payment of severance pay, additional wages, and an award for expenses and attorneys' fees.

¶ 4. On March 6, 1998, Shirk served a summons, complaint and notice of service on the Department of Financial Institutions (DFI) pursuant to the statute governing service to foreign corporations, Wis. Stat. § 181.66(2). The summons named Bowling as the defendant and contained the instruction that Bowling must answer the complaint within twenty days of receiving the summons or the court may enter judgment against Bowling. On March 16, 1998, the DFI mailed an authenticated copy of the Summons and Complaint, and the original Certificate of Service on the DFI showing service on March 6, 1998, as required by Wis. Stat. § 181.66, to the last known address of Bowling.

¶ 5. On March 17, 1998, Bowling received the copy of the summons and complaint. In addition, Bowling received a Notice of Service from Shirk that stated:

Please take notice, that on the 6th day of March, 1998, as reflected in the attached Certificate from the Department of Financial Institutions, a copy of the appended authenticated Summons and Complaint was served upon you through the aforesaid Department, all pursuant to Wisconsin Statutes § 181.66(2). Reference is herewith made to the contents of the appended Summons for further instructions.

¶ 6. On March 30, 1998, Shirk moved for default judgment because Bowling did not answer her complaint within 20 days of the March 6 service on the DFI. Bowling then filed an answer to Shirk's complaint on April 1,1998.

¶ 7. The circuit court denied Shirk's motion because the court determined that it would be required to reopen the case if Bowling brought a motion to vacate the default judgment under Wis. Stat. § 806.07(1). In addition, the court recognized the policy in Wisconsin to allow litigants their day in court and to decide cases based on the merits rather than on "legal traps or time limits." Tr. of Mot. Hr'g at p. 4. Lastly, the court noted that Bowling had filed an answer and was ready to defend Shirk's complaint. After denying Shirk's motion for default judgment, the circuit court granted summary judgment in favor of Bowling.

¶ 8. The court of appeals reversed, holding that the circuit court applied the wrong legal standard in making its decision. According to the court of appeals, the circuit court should have addressed whether Bowling had established excusable neglect, rather than simply stating a preference for deciding the case based on the merits. In addition, the court of appeals held that Bowling's three excuses for its late answer "were legally insufficient, as a matter of law, to establish excusable neglect." Shirk, slip op. at 4. The court of appeals did not address whether the circuit court properly granted Bowling's motion for summary judgment.

II

¶ 9. The present case requires us to determine whether a circuit court may deny a motion for default judgment based on the preemptive use of Wis. Stat. § 806.07(l)(a) when the party opposing the motion claims that its untimely answer was due to excusable neglect. A circuit court has discretion in deciding whether to grant a motion for default judgment. Oostburg State Bank v. United Savings & Loan Ass'n, 130 Wis. 2d 4, 11, 386 N.W.2d 53 (1986). We will not reverse a circuit court's decision unless the court erroneously exercised its discretion. Id

¶ 10. Bowling contends that the circuit court did not erroneously exercise its discretion. According to Bowling, the circuit court, in the present case, followed the court of appeals decision in Johns v. County of Oneida, 201 Wis. 2d 600, 549 N.W.2d 269 (Ct. App. 1996). In Johns, the court of appeals held that a circuit court could deny a motion for default judgment, without a finding of excusable neglect, if the court concluded that it would be required to vacate the judgment under Wis. Stat. § 806.07(1)(h). 201 Wis. 2d at 606. The reasoning behind the Johns decision was that it would be a needless use of judicial time and resources to grant a default judgment and then immediately vacate that judgment. Id. In addition, Bowling claims that the Johns decision follows language from this court in Willing v. Porter, 266 Wis. 428, 63 N.W.2d 729 (1954). In Willing, we stated that it would be a "useless waste" if a court granted a motion for default judgment, and then immediately considered a motion to set aside that judgment on the same grounds that were argued to deny the motion in the first place. 266 Wis. at 430. Bowling urges us to follow the holding of Johns and the language and holding of Willing.

¶ 11. Bowling also argues that the circuit court was not required to use the phrase "excusable neglect" to exercise properly its discretion when denying Shirk's motion for default judgment. Relying on Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 326 N.W.2d 727 (1982), Bowling claims that a circuit court makes an implicit finding of excusable neglect so long as it adequately recites the grounds for its decision. In the present case, Bowling contends that the circuit court adequately recited the grounds for its decision when it stated the policy preference for deciding cases on the merits and allowing litigants their day in court. Accordingly, Bowling claims that the circuit court did not erroneously exercise its discretion, even though it did not expressly use the phrase "excusable neglect."

¶ 12. Lastly, Bowling contends that it was misled by Shirk's use of a faulty summons based on an obscure service statute and that this constitutes grounds for a finding of excusable neglect. Bowling claims that it was reasonable to believe that the 20-day period in which to answer Shirk's complaint began when Bowling received the summons on March 17, rather than on March 6, the day the summons and complaint were served on the DFI. Bowling compares the facts of the present case to the facts of Jackson v. Employe Trust Funds Board, 230 Wis. 2d 677, 602 N.W.2d 543 (Ct. App. 1999). In Jackson, the court of appeals held that a circuit court did not erroneously exercise its discretion in denying a motion for default judgment, when the party opposing the motion claimed to be misled by an ambiguous service statute. 230 Wis. 2d at 694-95. Bowling argues that the notice of service which referred to Wis. Stat. § 181.66, combined with the language of the summons itself, created an ambiguity as to when its answer was due. Bowling therefore claims that its failure to file an answer within 20 days of the date that service was effected on the DFI was excusable neglect.

¶ 13. By contrast, Shirk contends that the circuit court erroneously exercised its discretion in denying her motion for default judgment. Shirk argues that Bowling failed to set forth the specific details of its claimed excusable neglect. Shirk compares the facts of the present case to the facts of Hedtcke, which this court found to be insufficient to establish excusable neglect. 109 Wis. 2d at 472. In Hedtcke, we held that a lawyer's claim of the press of other legal business, without stating "specific incidents and a persuasive explanation," failed to establish excusable neglect. 109 Wis. 2d at 473. Shirk argues that Bowling's claim that the summons and notice of service were both misleading, without the specific details of who was misled and how they were misled, is insufficient to support its claim of excusable neglect. Shirk also relies on Gerth v. American Star Ins. Co., 166 Wis. 2d 1000, 480 N.W.2d 836 (Ct. App. 1992) for the proposition that Bowling cannot sustain a claim of excusable neglect based on one sentence from the notice of service.

¶ 14. Shirk also contends that the facts of the present case should not have led the circuit court to the conclusion that denial of the motion for default judgment was necessary, because the court would later have had to vacate the judgment under Wis. Stat. § 806.07(1). Shirk claims that, in addition to Bowling's failure to establish excusable neglect under Wis. Stat. § 806.07(l)(a), the test for relief under § 806.07(1)(h) is not met here. The requirements were explained by this court in State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 363 N.W.2d 419 (1985). Section 806.07(1)(h) allows a court to vacate a judgment if there are "[a]ny other reasons justifying relief from the operation of the judgment." The test is whether there are "extraordinary circumstances" to justify such relief. M.L.B., 122 Wis. 2d at 549. According to Shirk, the courts in both M.L.B. and Johns found extraordinary circumstances due to the consequences of allowing the judgment to stand, and therefore vacated the judgment. Shirk claims that extraordinary circumstances exist when a judgment either "prolongs a controversy or revives a controversy previously resolved." Shirk argues that there are no extraordinary circumstances in the present case that arise from allowing the default judgment to stand.

¶ 15. We begin our analysis of the arguments of the parties with the statute that governs the granting of a default judgment, Wis. Stat. § 806.02. The first sentence of the statute provides that "[a] default judgment may be rendered. . . ." Wis. Stat. § 806.02(1). The use of the word "may" indicates that the circuit court "is not required to enter a default judgment." Hansher v. Kaishian, 79 Wis. 2d 374, 387, 255 N.W.2d 564 (1977). As noted previously, the decision to grant a motion for default judgment is within the sound discretion of the circuit court. Oostburg, 130 Wis. 2d at 11. We have set forth guidelines for the circuit courts to follow in the exercise of such discretion:

The trial court must undertake a reasonable inquiry and examination of the facts as the basis of its decision. The exercise of discretion must depend on facts that are of record or that are reasonably derived by inference from the record and the basis of that exercise of discretion should be set forth. This court will not find an [erroneous exercise] of discretion if the record shows that discretion was in fact exercised and if the record shows that there is reasonable basis for the trial court's determination.

Howard v. Duersten, 81 Wis. 2d 301, 305, 260 N.W.2d 274 (1977).

¶ 16. We have also instructed circuit courts to keep certain policies in mind when deciding motions for default judgment. A court should consider that: "(1) [the default judgment statute] is remedial in nature and should be liberally construed. . .; (2) the law prefers, whenever reasonably possible, to afford litigants a day in court and a trial on the issues. . .; and (3) as a corollary to this preference, default judgments are regarded with particular disfavor." Dugenske v. Dugenske, 80 Wis. 2d 64, 68, 257 N.W.2d 865 (1977). Moreover, we have directed that a court, in deciding a motion to vacate a default judgment, consider whether the party seeking relief from the judgment has taken prompt action. Hansher, 79 Wis. 2d at 392.

¶ 17. In addition, Bowling is correct that a circuit court does not erroneously exercise its discretion when it denies a motion for default judgment because it concludes that it would thereafter be compelled to entertain a motion to set aside that judgment. Willing, 266 Wis. at 430; Johns, 201 Wis. 2d at 605-06. For the sake of judicial economy, a circuit court should not grant a motion for default judgment and then immediately entertain a motion to vacate that judgment based on the same grounds relied upon by a party arguing for denial in the first place. Willing, 266 Wis. at 430; Johns, 201 Wis. 2d at 605-06. In Johns, the court of appeals held that a circuit court may deny a motion for default judgment if the court determines that it would reopen the case due to the existence of extraordinary circumstances under Wis. Stat. § 806.07(1)(h). 201 Wis. 2d at 605-06. The court followed our statement in Willing that " 'it would be a useless waste' " for a circuit court to grant a default judgment and then instantly face a motion to vacate that judgment. Id. (quoting Willing, 266 Wis. at 430). To preserve judicial time and resources, a circuit court properly denies a motion for default judgment, if it determines that it would be compelled to reopen that judgment if the party opposing the motion brought a motion to vacate under Wis. Stat. § 806.07(1).

¶ 18. As the parties have discussed, one of the grounds for vacating a default judgment is if the party against whom judgment has been rendered can establish excusable neglect. Wis. Stat. § 806.07(1)(a). Excusable neglect is " 'neglect which might have been the act of a reasonably prudent person under the same circumstances.'" Hedtcke, 109 Wis. 2d at 468 (citations omitted). Excusable neglect is not just" 'neglect, carelessness or inattentiveness.'" Id.

¶ 19. There is an additional requirement for a party seeking the denial of a default judgment motion based on the preemptive use of Wis. Stat. § 806.07(1)(a). The party must also establish that it has a meritorious defense to the underlying action. J.L. Phillips & Assoc., Inc. v. E & H Plastic Corp., 217 Wis. 2d 348, 351, 577 N.W.2d 13 (1998). A meritorious defense is any defense that is "good at law." Id. at 360. A defense that is good at law "is a defense that requires no more and no less than that which is needed in a timely-filed answer to survive a motion for judgment on the pleadings." Id. The party does not need to demonstrate any likelihood of success. Id.

¶ 20. In the present case, the circuit court did not erroneously exercise its discretion. To begin with, the court properly concluded that it could deny Shirk's motion for default judgment based on the preemptive use of Wis. Stat. § 806.07(1). Willing, 266 Wis. at 430; Johns, 201 Wis. 2d at 605-06. The court determined that it would be "required to reopen the case" if Bowling brought such a motion to vacate. The circuit court was not required to waste, needlessly, its time and resources by granting Shirk's motion for default judgment, and then immediately entertaining, and granting, Bowling's motion to vacate that judgment.

¶ 21. There was a reasonable basis for the circuit court's exercise of discretion that was supported by the facts in the record. Howard, 81 Wis. 2d at 305. Even though the court did not expressly use the phrase excusable neglect, Bowling accurately asserts that there was such a reasonable basis in the record, namely, the fact that the summons and the notice of service seemed to set two different dates as to when the 20-day period for answering the complaint began. We disagree with Shirk's argument that Bowling failed to address the specific facts of its excusable neglect. The notice of service stated that Bowling had been served through the DFI on March 6,1998. By operation of Wis. Stat. § 181.66, Bowling had 20 days from this date to answer Shirk's complaint. In addition, the notice of service stated "[Reference is herewith made to the contents of the appended Summons for further instructions." On March 17,1998, Bowling received the summons that stated "[w]ithin twenty (20) days of receiving this summons, [Bowling] must respond with a written answer." We agree with Bowling that a reasonably prudent person, in the same circumstances as Bowling, could have been confused as to whether the 20-day period to answer began on March 6, the date of service on DFI, or March 17, the date that Bowling received the summons. See Hedtcke, 109 Wis. 2d at 468 (holding that excusable neglect is " 'that neglect which might have been the act of a reasonably prudent person under the same circumstances.' "Xcitations omitted). We, therefore, conclude that the circuit court did not erroneously exercise its discretion in denying Shirk's motion for default judgment, because the confusion created by the interplay between the summons and the notice of service established excusable neglect on Bowling's part.

¶ 22. The circuit court also considered the appropriate standards or guidelines when deciding whether to grant a motion for default judgment. See Dugenske, 80 Wis. 2d at 68. First, the court recognized the policy of affording litigants their day in court by stating that "we do have a preference in state courts that everyone be allowed his or her day in court." Tr. of Mot. Hr'g at 6. Second, the court took note of the fact that default judgments are regarded with disfavor by stating "our appellate courts have directed trial courts to attempt to get the issues resolved based on the substantive facts as opposed to any legal traps or time limits." Id. at 4. In addition, the circuit court correctly considered the fact that Bowling had taken prompt action in opposing the motion for default judgment, and, thus, seeking relief, by stating that "[h]ere the defendant is ready to answer today." Id. at 3. Bowling filed an answer two days after Shirk moved for default judgment, was prepared to defend against Shirk's complaint, and filed a brief, with supporting affidavits, opposing the motion for default judgment.

¶ 23. In addition to establishing excusable neglect, Bowling satisfied the other requirement to succeed on a motion to vacate a default judgment, the existence of a meritorious defense. To meet this requirement, Bowling needed to establish a defense "good-at-law," that is, a defense that would survive a motion for judgment on the pleadings. J.L. Phillips, 217 Wis. 2d at 359-60. Bowling apparently had such a defense. The circuit court, after denying Shirk's motion for default judgment, granted summary judgment in favor of Bowling. Given that the circuit court found that Bowling's defense entitled it to summary judgment, then this defense was also good enough to survive a motion for judgment on the pleadings.

III

¶ 24. In summary, we conclude that the circuit court did not erroneously exercise its discretion by denying Shirk's motion for default judgment. The circuit court properly concluded that it could deny Shirk's motion based on the preemptive use of Wis. Stat. § 806.07(1). In addition, we conclude that Bowling established excusable neglect due to the confusion created by the interplay between the summons and the notice of service. We further conclude that Bowling established the existence of a meritorious defense. Accordingly, we reverse the decision of the court of appeals and remand this case to it for consideration of the other issues raised there but not before us.

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

       All subsequent references to the Wisconsin Statutes are to the 1995-96 version unless otherwise indicated.

       Wisconsin Stat. § 806.07 provides in pertinent part:
      (1) On motion and upon such terms as are just, the court may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
      (a) Mistake, inadvertence, surprise, or excusable neglect;
      (h) Any other reasons justifying relief from the operation of the judgment.

       We do not address the circuit court's granting of summary judgment in favor of Bowling. In its petition for review to this court, Bowling requested review of the issue of whether the circuit court properly denied Shirk's motion for default judgment. The petition does not mention the grant of summary judgment. Shirk's response to the petition for review also fails to mention the grant of summary judgment. In addition, neither Shirk nor Bowling addressed the grant of summary judgment in their respective briefs to this court, other than to note that summary judgment had been granted to Bowling. In the conclusion to the brief on behalf of Shirk, the following is stated: "Even reversal of flat [sic] decision results in remand to the Court of Appeals for some relief on Shirk's other issues." Br. of Pl.-Appellant at 37.
      The Court of Appeals decided the present case solely on the grounds that the circuit court erroneously denied Shirk's motion for default judgment. The court noted that Shirk raised three issues on the appeal. Because the court concluded that the default judgment issue was dispositive of the appeal, the court declined to address the other two issues raised by Shirk. The court stated that the other two issues are: "(1) whether the severance package was due in full at the next payroll date as a matter of law or by the parties' agreement; and (2) whether certain allegedly delinquent payments made by Bowling to Shirk were subject to the penalty under § 109.11(2)(a), STATS." Shirk v. Bowling, Inc., No. 98-3634-FT, unpublished slip op. at 3 n.3 (Ct. App. Oct. 12, 1999).

       Wisconsin Stat. § 181.66(2) provides:
      A foreign corporation conducting its affairs or acquiring, holding or disposing of property in this state, shall by so doing be deemed to have thereby appointed the department as its agent and representative upon whom any process, notice or demand may be served in any action or proceeding arising out of or relating to any affairs conducted or property acquired, held or disposed of within this state. Service of such process, notice or demand shall be made by serving a copy upon the department, and such service shall be sufficient service upon said foreign corporation, provided that notice of such service and a copy of the process, notice or demand are within 10 days thereafter sent by mail by the plaintiff to the defendant at its last-known address, and that the plaintiffs affidavit of compliance herewith is appended to the process, notice or demand. The department shall keep a record of all such processes, notices and demands which shows the day and horn1 of service.

       Preemptive is defined as "taken as a measure against something possible, anticipated, or feared; preventive; deterrent." The Random House Unabridged Dictionary 1524 (2d ed. 1993).

       We have replaced the phrase "abuse of discretion" with the phrase "erroneous exercise of discretion." City of Brookfield v. Milwaukee Metro. Sewerage Dist., 171 Wis. 2d 400, 423, 491 N.W.2d 484 (1992). Although the name has changed, the standard to be applied remains the same. Id.

       The relevant section of Wis. Stat. § 806.02 provides: "(1) A default judgment may be rendered. . .if no issue of law or fact has been joined and if the time for joining issue has expired."

       We do not address Shirk's argument that Bowling failed to establish extraordinary circumstances to justify relief from a judgment under Wis. Stat. § 806.07(l)(h) because we conclude that Bowling has established excusable neglect under § 806.07(l)(a).

       The facts of the present case are distinguishable from the facts of Gerth v. American Star Ins. Co., 166 Wis. 2d 1000, 480 N.W.2d 836 (Ct. App. 1992). In Gerth, the plaintiff sent two copies of the summons and complaint to the commissioner of insurance, which then mailed the process to the defendant's office in Waukesha, Wisconsin. 166 Wis. 2d at 1004. The defendant's claims manager, located in San Francisco, California, then received the summons 19 days later. Id. at 1004-05. The defendant argued that this delay caused the claims manager to believe that he had 20 days from his receipt of the summons to answer the complaint. Id. at 1007-08. According to the defendant, the delay in sending the summons from Waukesha to San Francisco, combined with the claims manager's confusion over when the answer was due, established excusable neglect. Id. The court of appeals rejected that argument, holding that the claims manager's failure to determine the correct date for when the answer was due was neglect, but not excusable neglect, because the summons was stamped "received" and contained the date of receipt at the Waukesha office. Id. at 1008.
      In the present case, in addition to the summons and complaint, Shirk drafted the notice of service which stated "[Reference is herewith made to the contents of the appended Summons for further instructions." It is this sentence in the notice of service, combined with the summons, that created confusion and established excusable neglect on the part of Bowling. Accordingly we do not require supplemental briefing addressing which summons form Shirk should have used, and we deny Shirk's motion for supplemental briefing.