author: CURLEY, J. FINE, J.

text:
    Thomas More High School, Petitioner-Appellant, v. Elizabeth Burmaster, State Superintendent, and Wisconsin Department of Public Instruction, Respondents-Respondents.
    Court of Appeals

      No. 2004AP2511.

      Submitted on briefs May 5, 2005.

      Decided August 9, 2005.

    2005 WI App 204
    (Also reported in 704 N.W.2d 349.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Lawrence J. Haskin of Haskin & Book of Oak Creek.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Robert M. Hunter, assistant attorney general.
    Before Fine, Curley and Kessler, JJ.

       Petition to review denied 11-11-05.

   CURLEY, J.

¶ 1. Thomas More High School (More) appeals from the trial court order affirming the decision of Elizabeth Burmaster, the State Superintendent of the Wisconsin Department of Public Instruction (DPI), who determined that More is not eligible to participate in the Milwaukee Parental Choice Program (Choice), pursuant to Wis. Stat. § 119.23 (2003-04), because the school is not located in the City of Milwaukee. On appeal, More contends that, under the plain language of § 119.23(2)(a), it is located in the City of Milwaukee, and that Wis. Admin. Code § PI 35.03 does not apply to More because it is in conflict with § 119.23(2)(a) and exceeds the authority of the DPI. Because we conclude that § 119.23(2)(a) is not ambiguous, § PI 35.03 properly clarifies the private school requirements of the statute, including the requirement that to be eligible for Choice, a certificate of occupancy must be obtained from the City of Milwaukee, and Burmaster correctly determined that More is ineligible to participate in the program, we affirm.

I. Background.

¶ 2. The Milwaukee Parental Choice Program was created in 1989 to subsidize private education for underprivileged students in the City of Milwaukee. More is a Catholic high school located primarily in the City of St. Francis. When it first sought participation in Choice in 1999, More was declared ineligible to participate because the school was not located in the City of Milwaukee. While approximately 20% of the school grounds, comprised of green space, a parking lot, a driveway, and track and field areas, are located in the City of Milwaukee, none of More's buildings are located in the City of Milwaukee.

¶ 3. In 2002, More attempted to have the portion of its property located in the City of St. Francis annexed to the City of Milwaukee. However, St. Francis voters defeated the referendum that would have allowed More to detach its land.

¶ 4. Following the vote, More petitioned the DPI seeking a declaratory ruling that More was eligible to participate in Choice. While a decision was pending, the DPI's chief legal counsel wrote to More informing the school that in order to be eligible for Choice, it needed to submit a timely application. More proceeded to submit an application for participation in Choice for the 2004-05 school year. After More submitted its application, the DPI sent a letter to More stating that rather than issue a declaratory ruling on More's eligibility, the school's eligibility would be determined based on More's submitted application. The next day, the DPI informed More that its application had been denied because the school was located in the City of St. Francis. In its reasoning, the letter noted that More could not obtain a certificate of occupancy from the City of Milwaukee as required by the administrative rule promulgated by the DPI to carry out Wis. Stat. § 119.23(2)(a)5.'s mandate. The letter explained:

Wisconsin statutes governing the program provide that a private school in [Choice] must be located in the City of Milwaukee. In addition, the program's administrative rules require the administrator of each participating school to submit a copy of its current certificate of occupancy issued from the City of Milwaukee. The map of the Thomas More property, obtained from the City of Milwaukee, shows that over 80 percent of the property is located in the City of St. Francis, including all of the academic and administration facilities. Second, the St. Francis School District (covering the City of St. Francis) has historically listed Thomas More High School as a private school within its district boundaries and has offered federally funded services to the private school based on students attending Thomas More. Third, we have been advised by the City of Milwaukee, Milwaukee Development Center, that the City of Milwaukee does not have the authority to issue a certificate of occupancy for Thomas More because its school buildings are under the jurisdiction of the City of St. Francis. Finally, as you note in your affidavit in support of a Petition for a Declaratory Ruling, Thomas More petitioned St. Francis to detach the land occupied by Thomas More from St. Francis and petitioned Milwaukee to annex said lands into Milwaukee and the voters of St. Francis, by referendum, rejected the petition.

(Footnote added.)

¶ 5. Thereafter, More filed a petition for judicial review of the DPI's ruling. The trial court affirmed the DPI's ruling, finding that More did not fulfill the occupancy permit requirement and was therefore ineligible to participate in Choice. More now appeals.

II. Analysis.

¶ 6. On appeal, More contends that, under the plain language of Wis. Stat. § 119.23(2)(a), the school is located in the City of Milwaukee, and Wis. Admin. Code § PI 35.03 does not apply to More because it is in conflict with § 119.23(2)(a) and exceeds the authority of the DPI. Specifically, More insists that § 119.23(2)(a)

is as important for what it does not say as what it does say. The statute does not say that a school must be located entirely, wholly, completely, or exclusively in the City of Milwaukee. That statute does not say that the school building or buildings must be located in Milwaukee.

(Emphasis in brief.) As such, More argues that "[t]he answer to this case is found in the very simple question: [I]s More located in the City of Milwaukee? The answer is yes." It asserts that because a school includes all of its property — including parking lots, driveways, athletic fields, fences and green space — and because a portion of More's parking lot, driveway, athletic fields, fences and green space is located in Milwaukee, then More is located in the City of Milwaukee. In the absence of more restrictive language, More argues, it must be concluded that the school is located in Milwaukee.

¶ 7. Moreover, More asserts that Wis. Admin. Code § PI 35.03 does not apply to More because it is in conflict with Wis. Stat. § 119.23(2)(a) and exceeds the authority of the DPI:

Wis. Stat. § 119.23(2)(a) [. ..] requires only that a private school be located in a first class city, not that the school be required to obtain an occupancy permit from Milwaukee. Therefore, there is a conflict between the statute and the administrative rule. Requiring a school to obtain an occupancy permit is clearly within DPI's authority since Wis. Stat. § 119.23(2)(a) 5 requires that a private school meet all health and safety laws or codes that apply to public schools. However, DPI cannot by administrative rule exclude from Choice those schools that the legislature has determined to be eligible for Choice. Resolving a conflict between a statute and an interpretive rule requires statutory interpretation.
Here, DPI, by promulgation of an administrative rule attempts to make the Choice law inapplicable to More because the City of Milwaukee will not issue it an occupancy permit. DPI has exceeded its authority in excluding More from participation in Choice .... [T]his court should rule that Wis. Admin. Code § PI 35.03 is inapplicable to More. More can insure that it meets the requirements of Wis. Stat[.] § 119.23 (2) (a) 5 regarding health and safety codes by filing with DPI an occupancy certificate from St. Francis.

(Citations omitted.) Furthermore, More contends that, in any event, § PI 35.03 should not control the outcome of this case because Choice first became law in 1989, and § PI 35.03 was not created until 2000, after More first sought participation in the program.

¶ 8. The DPI contends that the

terms of Wis. Stat. § 119.23(2)(a), as to what constitute[s] a school "located in the city," [are] ambiguous and that in conjunction with Wis. Stat. § 119.23(2)(a)5., the promulgation of Wis. Admin. Code § PI 35.03(3) (requiring schools participating in the Choice Program to obtain an occupancy permit from the City of Milwaukee) was necessary and appropriate and within the discretion granted to the State Superintendent by the Legislature.

It notes More's unsuccessful attempts to petition the City of St. Francis to detach the land upon which More's buildings are located so that it may be annexed by Milwaukee, and points to the veto of 2003 Assembly Bill 260, in support of its contention that both More and the legislature have recognized that the plain meaning of the statute leads to the inevitable conclusion that More is not eligible to participate in Choice. The DPI also insists that had the legislature intended for Choice to apply to schools "any part of whose grounds are located within the city," it could have inserted language indicating as much in the statute.

¶ 9. Further, the DPI asserts that Wxs. Admin. Code § PI 35.03 does not conflict with the statute in that it is without question that "the city" referred to in Wis. Stat. § 119.23(2)(a) is the City of Milwaukee, § 119.23(2)(a)5. requires that the private school meet all health and safety law or codes that apply to public schools, and § 119.23(2)(a)5. "can reasonably be understood to require that the schools participating in the Choice Program demonstrate compliance (i.e., obtain an occupancy permit) with all health and safety codes from 'the city' of Milwaukee."

¶ 10. In considering an appeal from an agency's decision, "we review the agency's decision, not the [trial] court's." Kozich v. Employe Trust Funds Bd., 203 Wis. 2d 363, 368-69, 553 N.W.2d 830 (Ct. App. 1996). An agency's factual findings must be upheld "if there is credible and substantial evidence in the record upon which reasonable persons could rely to make the same findings." ITW Deltar v. LIRC, 226 Wis. 2d 11, 16, 593 N.W.2d 908 (Ct. App. 1999). "Once the facts are established, however, the application of those facts to the statute is a question of law." Id.

¶ 11. Moreover, "[statutory interpretation is a question of law that we review de novo, and as such, we are not bound by an agency's interpretation." Hutson v. State of Wis. Pers. Comm'n, 2003 WI 97, ¶ 31, 263 Wis. 2d 612, 665 N.W.2d 212. Yet, some degree of deference is generally given to an agency's statutory interpretation, but "[t]he degree of deference... depends upon the extent to which the 'administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute.'" Id. (citation omitted). The supreme court has identified three distinct levels of deference: great weight, due weight, and de novo review; "[w]hich level is appropriate 'depends on the comparative institutional capabilities and qualifications of the court and the administrative agency.'" UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996) (citation omitted).

¶ 12. The due weight standard "is appropriate when the agency has some experience in an area, but has not developed the expertise which necessarily places it in a better position to make judgments regarding the interpretation of the statute than a court." Id. at 286. If we employ the due weight standard, we will not overturn "a reasonable agency decision that comports with the purpose of the statute unless [we determine] that there is a more reasonable interpretation available." Id. at 287. Due weight deference "is not so much based upon [the agency's] knowledge or skill as it is on the fact that the legislature has charged the agency with the enforcement of the statute in question." Id. at 286. However, "[u]nder the due weight standard, 'a court need not defer to an agency's interpretation which, while reasonable, is not the interpretation which the court considers best and most reasonable.'" Id. (citation omitted). On the other hand, the de novo standard of review is "applicable when the issue before the agency is clearly one of first impression, or when an agency's position on an issue has been so inconsistent so as to provide no real guidance[.]" Id. at 285 (citations omitted).

¶ 13. The parties disagree as to which standard of review and level of deference is required here. The DPI asserts that we are faced with a mixed question of law and fact, in that the "essential question before the State Superintendent, and hence now before this Court, is whether More is 'located within the city [of Milwaukee],' as required by Wis. Stat. § 119.23(2)(a)[,]" and insists that "[t]hat determination clearly requires the application of the applicable statute to the State Superintendent's findings of fact in this case[,]" and that her findings must be upheld. Moreover, should we determine this to be purely a question of law, the DPI urges us to employ the due weight deference standard, as the "State Superintendent submits that she has 'some experience' in the area and, as the head of the agency charged by the Legislature with the enforcement of the statutes in question, her construction and application of Wis. Stat. § 119.23(2)(a) and (2)(a)5. are entitled to due deference[.]" On the other hand, More insists that there were no findings of fact in this case, and it involves only the application of a statute to an undisputed set of facts, which we should review de novo, as it is a case of first impression and "the Superintendent has no experience on this issue."

¶ 14. As presented, this case essentially involves the interpretation of a statute, the determination of whether an administrative rule conflicts with a statute, and the application of a statute and an administrative rule to a set of facts. Though More argues that "the Superintendent has no experience on this issue," we conclude that the due weight standard is appropriate, as the DPI has been charged with the enforcement and administration of Choice and the statute in question. See, e.g., Wis. Stat. § 119.23(11). While we agree with the DPI's ultimate conclusion, we determine that there is a more reasonable statutory interpretation available than that adopted by the DPI.

¶ 15. "An administrative rule that conflicts with an unambiguous statute exceeds the authority of the agency that promulgated it[,]" Seider v. O'Connell, 2000 WI 76, ¶ 28, 236 Wis. 2d 211, 612 N.W.2d 659, and as such, we begin our review by considering whether Wis. Stat. § 119.23(2)(a) is ambiguous, see id. The rules of statutory interpretation are as follows:

When interpreting statutes, our goal is to give effect to the language of the statute. We begin by looking to the language of the statute because we "assume that the legislature's intent is expressed in the statutory language." Technical terms or legal terms of art appearing in the statute are given their accepted technical or legal definitions while nontechnical words and phrases are given their common, everyday meaning. Terms that are specifically defined in a statute are accorded the definition the legislature provided. In addition, we read the language of a specific statutory section in the context of the entire statute. Thus, we interpret a statute in light of its textually manifest scope, context, and purpose.

Peterson v. Volkswagen of Am., Inc., 2005 WI 61, ¶ 19, 281 Wis. 2d 39, 697 N.W.2d 61 (citations omitted). Moreover, "extrinsic sources, such as legislative history, are not consulted unless the statute is ambiguous. A statute is ambiguous if it is susceptible to more than one reasonable understanding." Id. (citation omitted). However, a statute is not ambiguous simply because the parties differ as to its meaning. Seider, 236 Wis. 2d 211, ¶ 30.

¶ 16. Wisconsin Stat. § 119.23(2)(a) is not ambiguous. The statute provides, in relevant part:

Milwaukee parental choice program.... (2) (a) Subject to par. (b), any pupil in grades kindergarten to 12 who resides within the city may attend, at no charge, any private school located in the city if all of the following apply:
5. The private school meets all health and safety laws or codes that apply to public schools.

Section 119.23(2)(a)5. A plain reading of the statute succinctly indicates that any pupil within a certain geographic region may attend any "private school located in the city" if, among other things, the private school meets all health and safety laws or codes that apply to public schools. The title of the statute is "Milwaukee parental choice program." Clearly, then, from the language and context of the statute, "the city" referred to is Milwaukee. It is also quite clear from the language of the statute that the "school" must be located in the City of Milwaukee. "School" is not defined by the statute, but in a common, everyday sense, the word "school" generally refers to the building or buildings within which the educational institution is operated. The private school itself must be located in the City of Milwaukee.

¶ 17. Indeed, there is no other plausible interpretation when one reads the entire statute in context. For example, Wis. Stat. § 119.23(7) (d) states, in relevant part:

By August 1 before the first school term of participation in the program .. . each private school participating in the program under this section shall submit to the department all of the following:
1. A copy of the school's current certificate of occupancy issued by the city ....

Just as "the city" in the previous section clearly refers to the City of Milwaukee, so too does "the city" refer to the City of Milwaukee here. Had the legislature intended for schools whose buildings are not physically located in the City of Milwaukee to participate in the program, surely it would not require them to submit "[a] copy of the school's current certificate of occupancy issued by the c/fy[,]" for it would be impossible to do so (emphasis added).

¶ 18. Moreover, Wis. Stat. § 119.23(6) requires "Ct]he board" to "provide transportation to pupils attending a private school under this section ...." Within a statute entitled "Milwaukee parental choice program," "the board" clearly refers to the Milwaukee Board of School Directors. As the Milwaukee Board of School Directors oversees only the school districts within the City of Milwaukee, a private school eligible for participation in Choice would presumably have to fall within the geographic boundaries of a district under the governance of the Milwaukee Board of School Directors. This clearly supports the plain and unambiguous intent of the statute — the private school itself must be located in the City of Milwaukee.

¶ 19. As such, a plain reading of the statute applied to the facts here indicates that, although portions of More's property are located in Milwaukee, the school itself is not. Although More argues that the language of the statute does not require that the school "must be located entirely, wholly, completely, or exclusively in the City of Milwaukee" or that "the school building or buildings must be located in Milwaukee," a plain reading of Wis. Stat. § 119.23(2), when read in the context of the entire statute, supports the opposite interpretation. Accordingly, we determine that the statute is unambiguous in that regard.

¶ 20. Finally, the statute broadly requires the private school to meet "all health and safety laws or codes that apply to public schools." Wis. Stat. § 119.23(2)(a)5. To clarify what is required, Wis. Admin. Rulk § PI 35.03(3), was promulgated using language almost identical to that found in Wis. Stat. § 119.23(7)(d)'s mandate requiring a certificate of occupancy from the City of Milwaukee:

(3) Health and safety keqtoRements. The administrator of a school in the Milwaukee parental choice program shall ensure that the school is meeting the requirements of s. 119.23 (2), Stats., regarding health and safety laws and codes for schools by filing with the department a copy of the private school's current certificate of occupancy issued by the city of Milwaukee.... A private school that fails to meet the requirements of this subsection may not participate in the choice program.

(Emphasis added.) See Wis. Stat. § 119.23(11) ("The department shall promulgate rules to implement and administer this section."). More erroneously argues, however, that the statute does not specifically require the school to obtain an occupancy permit from Milwaukee and claims that there is a conflict between the statute and the administrative rule. Although More concedes that "[r]equiring a school to obtain an occupancy permit is clearly within DPI's authority since Wis. Stat. § 119.23(2)(a) 5 requires that a private school meet all health and safety laws or codes that apply to public schools[,]" it insists that the "DPI cannot by administrative rule exclude from Choice those schools that the legislature has determined to be eligible for Choice."

¶ 21. It is clear from our analysis above, however, that the legislature did not intend for schools like More to be eligible for Choice, in that the statute itself requires schools to obtain an occupancy permit from the City of Milwaukee. The administrative rule has not excluded any eligible schools from participating in Choice. It has merely clarified the requirement set forth in Wis. Stat. § 119.23(2)(a)5. An administrative rule that requires a school to file a certificate of occupancy issued by the City of Milwaukee in order to participate in the "Milwaukee parental choice program" hardly seems contradictory. It is a reasonable clarification of the requirements broadly set forth in the statute. There is no conflict here.

¶ 22. The City of Milwaukee refused to issue the requisite certificate of occupancy because it determined that More was not located in the City of Milwaukee, and accordingly, the DPI rejected More's request to participate in the program, noting in part: "we have been advised by the City of Milwaukee, Milwaukee Development Center, that the City of Milwaukee does not have the authority to issue a certificate of occupancy for Thomas More because its school buildings are under the jurisdiction of the City of St. Francis." Without the requisite certificate on file, More is ineligible. More did not challenge the City of Milwaukee's refusal to issue the certificate, and the DPI has not, by administrative rule, "excluded from Choice those schools that the legislature has determined to be eligible for Choice." Accordingly, we affirm.

By the Court. — Order affirmed.

FINE, J.

¶ 23. (dissenting). The Majority permits what I perceive as a clearly political decision by Elizabeth Burmaster to trump the legislature's command that poor children living in the City of Milwaukee be able to attend private schools "located in the city" of Milwaukee. Accordingly, I respectfully dissent.

¶ 24. The legislative command is clear:

(2) (a) Subject to par. (b), any pupil in grades kindergarten to 12 who resides within the city may attend, at no charge, any private school located in the city if all of the following apply:
1. The pupil is a member of a family that has a total family income that does not exceed an amount equal to 1.75 times the poverty level determined in accordance with criteria established by the director of the federal office of management and budget.
2. In the previous school year the pupil was enrolled in the school district operating under this chapter, was attending a private school under this section, was enrolled in grades kindergarten to 3 in a private school located in the city other than under this section or was not enrolled in school.
3. The private school notified the state superintendent of its intent to participate in the program under this section by February 1 of the previous school year. The notice shall specify the number of pupils participating in the program under this section for which the school has space.
4. The private school complies with 42 USC 2000d.
5. The private school meets all health and safety laws or codes that apply to public schools.

Wis. Stat. § 119.23. As the Majority recognizes, the key phrase, from which all aspects of its decision flow, is: "any private school located in the city." According to the Majority, Thomas More High School is not "located in the city" of Milwaukee because only some twenty percent of its grounds are in Milwaukee, and all of the buildings are in the City of St. Francis. I respectfully disagree.

¶ 25. More than bricks and mortar do a school make. Athletics are essential to the whole person and enhance the school experience of all students, even those who sit and cheer, as did I when I was a student. But beyond that, where would the Majority draw the line? It seems to say that in order to participate under Wis. Stat. § 119.23 (The "Milwaukee parental choice program") (bolding in original), a school's buildings must be in the City of Milwaukee. All of them? Ninety-eight percent of them? Fifty percent? Two percent? In my view, a school is where it is, and if it straddles two or more municipalities, it is "located" in each of them. Indeed, both the Wisconsin Interscholastic Athletic Association and the Woodland Conference consider Thomas More High School a City of Milwaukee school.

¶ 26. The Majority also opines that Thomas More High School cannot comply with Wis. Stat. § 119.23(7)(d)l (schools participating in the voucher program must submit a "copy of the school's current certificate of occupancy issued by the city") because "it would be impossible to do so." Majority, ¶ 17. The Majority does not explain, and I do not understand, either: (a) why Milwaukee cannot issue a "certificate of occupancy," or join in a certificate of occupancy with overlapping jurisdiction, for a facility that straddles Milwaukee and another community; or (b) why, under the statute, a certificate of occupancy issued by the City of St. Francis should not suffice. As to the latter point, the statute, unlike Burmaster's regulation, uses the word "city" in establishing the safety-based requirement that schools participating in the choice program have a certificate of occupancy. We can ascribe more than one meaning to the same word when that is necessary to reify legislative intent. See Wisconsin Citizens Concerned for Cranes & Doves v. Wisconsin Dep't of Natural Res., 2004 WI 40, ¶¶ 19-24, 270 Wis. 2d 318, 338-342, 677 N.W.2d 612, 622-624 (mourning doves are "game," defined as "wild... birds," even though they are not "game birds" and are within the category of "nongame species"); Turner v. City of Milwaukee, 193 Wis. 2d 412, 420, 535 N.W.2d 15, 17 (Ct. App. 1995) (when statutes on the same subject conflict or are inconsistent with one another, courts must attempt to harmonize them in order to effectuate the legislature's intent). Assume that some of Thomas More High School's buildings were in Milwaukee, who would, under the Majority's rationale, issue the certificate of occupancy for those buildings in St. Francis?

¶ 27. The legislature has clearly commanded that private schools "located in the city" of Milwaukee be allowed to participate in the Milwaukee parental choice program. Its concurrent desire that the schools be safe, and thus have a certificate of occupancy, should not be used as a device to deprive those qualifying Milwaukee children whose parents want to give them an education at Thomas More High School the opportunity to do so (absent, of course, any evidence, and there is none in this record, that Thomas More High School is unsafe). Indeed, as the Majority recognizes, the legislature attempted to clarify that Thomas More High School could participate in the Milwaukee parental choice program, but the legislation was vetoed by Governor Jim Doyle. See Majority, ¶ 8. I wonder how Burmaster can argue that we should discern legislative intent from a governor's veto of legislation passed by both houses of the legislature. Further, the Majority's reprinting of part of Burmaster's letter rejecting Thomas More High School's application to participate in the choice program raises more questions than it answers. First, 2001 Wis. Act 16 was the biennium budget enacted on August 30, 2001. In slip form together with gubernatorial vetoes, it is 789 pages. See http://www.legis.state.wi.us/2001/data/ acts/01Actl6.pdf. Neither Burmaster nor the Majority explains why an unspecified provision relating to Thomas More High School did not make it into that mélange. Many reasons may swim below the surface, including legislators' desire to get an early start on Labor Day without having the budget bill's adoption process riven by debate. Second, we cannot assess what weight to give to what was done (and, again, we do not know what was done or why) without knowing the proposal or proposals to which Burmaster may have been referring and the specific language. All we have is Burmaster's letter purporting to relate what the legislature or some legislators may or may not have done. In my view, that is a watery meringue that supports no weight.

¶ 28. I'm reminded of how Gertrude Stein expressed the futility of trying to return to her Oakland California roots because so much had changed in the years since she had left her childhood home: "there is no there there." Gertrude Stein, Everybody's Autobiography 298 (Exact Change 1993) (1937). The Majority says, in essence, that there is no "there" for Thomas More High School; under the Majority's rationale, Thomas More High School is nowhere. I respectfully dissent.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

        See Wis. Stat. § 119.23; Wis. Admin. Code § PI 35.01. Section 119.23(2)(a) provides, in part: "[A]ny pupil in grades kindergarten to 12 who resides within the city [of Milwaukee] may attend, at no charge, any private school located in the city if all of the following applyf]"

       John T. Benson was the State Superintendent when More was declared ineligible to participate in Choice the first time. Although the Dissent labels the most recent denial a "clearly political decision by Elizabeth Burmaster," it appears she was not the first State Superintendent to deny More participation in Choice because the school was not located in the City of Milwaukee. See Dissent, ¶ 23.

       Although we conclude that the statute is unambiguous, and thus have not and will not refer to extrinsic sources to discern its meaning, it is perhaps relevant to note, for background purposes only, that there have been unsuccessful executive and legislative attempts to amend the language of the statute. As Burmaster explained in the letter declaring More ineligible to participate:
      It is the department's opinion that in order for your school to be eligible for [Choice], the statutes governing the program would have to he modified. Former Governor McCallum did include such a provision in his proposed 2001-03 biennial budget bill; however, the provision was removed by the legislature (2001 Act 16). In addition, 2003 Assembly Bill 260 which would have allowed schools located in Milwaukee County to participate in [Choice] was recently vetoed by Governor Doyle.
      As such, it appears as though attempts have been both advanced and defeated by both the executive and legislative branches.

       Wisconsin Stat. § 119.23(2)(a) provides, in relevant part:
      Subject to par. (b), any pupil in grades kindergarten to 12 who resides within the city may attend, at no charge, any private school located in the city if all of the following apply:
      5. The private school meets all health and safety laws or codes that apply to public schools.
      Wisconsin Admin. Code § PI 35.03 provides, in relevant part:
      (3) Health and safety requirements. The administrator of a school in the Milwaukee parental choice program shall ensure that the school is meeting the requirements of s. 119.23 (2), Stats., regarding health and safety laws and codes for schools by filing with the department a copy of the private school's current certificate of occupancy issued by the city of Milwaukee .... A private school

        that fails to meet the requirements of this subsection may not participate in the choice program.

      (Emphasis added.)

       Because this appeal does not concern the denial of More's first effort to participate in the Choice program and More has not cited to any legal authority in support of this specific argument, we will not consider it.

       Specifically, DPI concluded the statute was ambiguous, while we conclude it is not.

       The Dissent questions this "impossibility" and suggests that the City of Milwaukee could, or perhaps should, "issue a 'certificate of occupancy,' or join in a certificate of occupancy with overlapping jurisdiction, for a facility that straddles Milwaukee and another community[.]" Dissent, ¶ 26. Here, however, the occupied facilities are not straddling the line — they are located in the City of St. Francis, and an answer to the question of what would or should happen if the school buildings were located in both cities is better left to be determined by a case with that factual scenario. Without any information regarding whether such a scenario even exists in the City of Milwaukee, it is perhaps a futile exercise to predict what should happen in such a case, especially in light of the distinct and likely possibility that the legislature had far more information before it in drafting and enacting the statute than we do now, and potentially considered that scenario and/or was mindful of its potential during the enactment of the statute. Moreover, following the Dissent's logic, any school, anywhere, can become a Choice school by buying a small plot in the City of Milwaukee.

       The DPI asserts that the administrative rule was promulgated to clarify the phrases "located in the city" and "meets all health and safety laws or codes."

       Wisconsin Stat. § 119.23(2)(b) is not applicable here. It provides:
      No more than 15% of the school district's membership may attend private schools under this section. If in any school year there are more spaces available in the participating private schools than the maximum number of pupils allowed to participate, the department shall prorate the number of spaces available at each participating private school.
      42 U.S.C. § 2000d also does not apply here, except as reifying the intent behind § 119.23(2)(a) to give every Milwaukee child equal access to quality education. It provides:
      No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or he subjected to discrimination under any program or activity receiving Federal financial assistance.

       Wisconsin Stat. § 119.23(7)(d)l is not the only provision where a certificate of occupancy is needed for property that may be in two or more adjoining municipalities. Wisconsin Stat. § 823.114(l)(d) authorizes the circuit court to order closure of buildings deemed to be nuisances "until all building code violations are corrected and a new certificate of occupancy is issued if required by the city, town or village within which the property is located." The Majority's definition of "located" makes this provision a nullity for properties that straddle two or more units of local government.


source: Caselaw Access Project

author: ANDERSON, PJ.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant, v. Deonte D. Riley, Defendant-Respondent.

    Court of Appeals

      No. 2004AP2321-CR.

      Oral argument June 10, 2005.

      Decided August 10, 2005.

    2005 WI App 203
    (Also reported in 704 N.W.2d 635.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Man Lee, assistant attorney general, and Peggy A. Lautenschlager, attorney general. There was oral argument by Alan Lee.

    On behalf of the defendant-respondent, the cause was submitted on the brief of and there was oral argument by William E. Schmaal, assistant state public defender, Madison.
    Before Anderson, PJ., Brown and Nettesheim, JJ.

       Petition to review denied 10-14-05.

   ANDERSON, PJ.

¶ 1. The issue presented in this case is whether the circuit court properly granted Deonte D. Riley's motion to suppress electronic surveillance evidence consisting of recordings of the outgoing telephone calls Riley placed from the Fond du Lac County jail. The Wisconsin Electronic Surveillance Control Law (WESCL), Wis. Stat. §§ 968.27-968.37 (2003-04), expressly prohibits interceptions of both wire and oral communications absent a court order authorizing or approving such interceptions, with some exceptions. The State asserts that the monitoring and recording of Riley's jailhouse calls fell under the WESCL's exception for one-party consent surveillance and the recordings are admissible. We hold that because Riley received meaningful notice that his outgoing calls over the jail's telephones were subject to being recorded, his decision to engage in conversations over those phones constituted implied consent to that recording. The interceptions of his telephone calls were lawful and the results of the interceptions are admissible in evidence so long as they are authenticated in accordance with § 968.29(3)(b). We reverse the order of the circuit court granting Riley's motion to suppress.

Facts

¶ 2. In the early morning hours of March 25, 2004, a deputy with the Fond du Lac County Sheriffs Department pulled Riley over for speeding. When Riley rolled down his window, the deputy detected the odor of burnt marijuana emanating from the vehicle. The deputy and several back-up officers from the city of Fond du Lac searched Riley's vehicle and found marijuana. The deputy issued Riley a warning for speeding, hut arrested him on a probation hold and took him to the Fond du Lac County jail.

¶ 3. Later that day, police received a report that someone was seen attempting to break into Riley's car, which had been left on the side of the highway when he was arrested. The Fond du Lac County Sheriff's Office responded and arrested Jason Seppel. Seppel informed police that he had received a call from "two girls" telling him that the police had "missed the drugs in the car and they told me to get the drugs out of the trunk." The police searched Riley's car after obtaining a search warrant and discovered more marijuana and cocaine.

¶ 4. The police later obtained recordings of telephone calls Riley had placed from the Fond du Lac County jail. Riley states in his response brief that the conversations "arguably tend to show that Riley had sought to have a friend move his automobile before the drugs were discovered by the police, but that the efforts proved unsuccessful."

¶ 5. Riley filed a motion to suppress the recordings, arguing that they were obtained in violation of the WESCL. At a hearing on that motion, the parties stipulated that the factual record for the decision would consist of two documents. The first is a transcript of the recording a person hears from the jail when placing an outgoing collect call:

THIS IS SBC PUBLIC COMMUNICATIONS WITH A COLLECT CALL FROM THE FOND DU LAC COUNTY JAIL FROM [CALLER'S NAME], THIS CALL MAY BE RECORDED. FOR A RATE QUOTE DIAL "7." IF YOU WILL PAY FOR THE CALL DIAL "0." THANK YOU FOR USING SBC PUBLIC COMMUNICATIONS. SUPSECTED ILLEGAL CALLS MAY BE TERMINATED. TO PERMANENTLY BLOCK CALLS FROM THIS NUMBER, DIAL STAR "3."

The second is a Department of Justice investigative report that contains a transcript of some of Riley's jailhouse phone conversations. Following the hearing, the circuit court granted Riley's motion to suppress evidence. The State now appeals.

Standard of Review

¶ 6. When we review a motion to suppress evidence, we will uphold the circuit court's findings of fact unless they are clearly erroneous. See Wis. Stat. § 805.17(2); State v. Eckert, 203 Wis. 2d 497, 518, 553 N.W.2d 539 (Ct. App. 1996). Whether the WESCL authorizes the interception and admission into evidence of Riley's jailhouse calls involves the application of a statute to a particular set of facts. As such, it is a question we answer without deference to the circuit court's reasoning. See City of Brookfield v. Collar, 148 Wis. 2d 839, 841, 436 N.W.2d 911 (Ct. App. 1989).

Discussion

¶ 7. The State argues that we must reverse the circuit court's order granting Riley's motion to suppress evidence derived from the monitoring and recording of his jailhouse calls because the WESCL's one-party consent exception applies. Pursuant to Wis. Stat. § 968.31(2) (b), an individual acting under the color of law may lawfully intercept oral and wire communications where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception. Pursuant to Wis. Stat. § 968.29(3)(b), these lawful interceptions are then admissible in court proceedings in which a person is accused of a felony, provided the party who consented to the interception is available to testify at the proceeding or another witness is available to authenticate the recording.

¶ 8. The parties' dispute in this case concerns the scope of the consent exception. The State maintains that the SBC recording provided Riley with meaningful notice that his outgoing calls from the jail's telephones may be recorded. Therefore, the State concludes, when Riley continued with his calls after hearing the SBC announcement, he impliedly consented to their interception. Because he consented, the interceptions were lawful and their contents are admissible into evidence as long as they can be properly authenticated.

¶ 9. Riley responds that he did not impliedly consent to the interception of his outgoing telephone calls for two reasons. He submits that the SBC announcement failed to adequately notify him that his calls would be recorded. He zeroes in on the fact that the SBC announcement stated that the call "may" be recorded, not that it definitely "will" be recorded, and maintains that "mere knowledge of the capability of monitoring alone cannot be considered implied consent." He also claims that there is no evidence that he actually heard the SBC announcement when he placed his calls.

¶ 10. The WESCL is patterned after Title III of the federal Omnibus Control and Safe Streets Act of 1968. State ex rel. Arnold v. County Court of Rock County, 51 Wis. 2d 434, 443, 187 N.W.2d 354 (1971). We therefore look to the federal courts' interpretations of the Title III consent exception for guidance. See id.; State v. Gilmore, 201 Wis. 2d 820, 825, 549 N.W.2d 401 (1996) ("[Ojur interpretation of WESCL benefits from the legislative history of Title III as well as from federal decisions that have considered Title III. Title III provides the minimum standard against which an interception must be judged." (Citations omitted.)).

¶ 11. Courts interpreting the federal law have concluded that "[C]onsent may be express or may be implied in fact from 'surrounding circumstances indicating that the [defendant] knowingly agreed to the surveillance.'" United States v. Van Poyck, 77 F.3d 285, 292 (9th Cir. 1996) (second alteration in original) (citing United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987)). The federal circuit courts that have addressed the consent exception in the prison setting have overwhelmingly concluded that an inmate has given implied consent to electronic surveillance when he or she is on notice that his or her telephone call is subject to monitoring and recording and nonetheless proceeds with the call. See United States v. Footman, 215 F.3d 145, 155 (1st Cir. 2000); Amen, 831 F.2d at 378-79; United States v. Willoughby, 860 F.2d 15, 19-20 (2d Cir. 1988); United States v. Workman, 80 F.3d 688, 693-94 (2d Cir. 1996); United States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002); United States v. Horr, 963 F.2d 1124, 1126 (8th Cir. 1992); Van Poyck, 77 F.3d at 292. But see United States v. Daniels, 902 F.2d 1238, 1244-45 (7th Cir. 1990) (expressing reservations about finding Title Ill's consent requirement satisfied in this context).

¶ 12. We rely on this developed federal consensus on the scope of the consent exception and apply it to the WESCL. We have every reason to believe that in passing the WESCL, our legislature, like the federal legislature, would have included within the meaning of consent an inmate's implied acceptance of having his or her calls recorded. Although the WESCL does reflect congressional concern for protecting privacy rights, see State v. Gil, 208 Wis. 2d 531, 539-40, 561 N.W.2d 760 (Ct. App. 1997), that concern does not extend to inmates of a county jail. Jail inmates have no expectation of privacy in calls to nonattorneys placed on institutional telephones; their right to privacy is outweighed by the institution's need for safety and security. See J.A.L. v. State, 162 Wis. 2d 940, 948-49, 971 n.8, 471 N.W.2d 493 (1991) (noting in dicta that law enforcement officials' monitoring of some of an inmate's conversations in the interview rooms of a juvenile detention center did not violate the WESCL because the inmate had no justifiable expectation of privacy in "the context of a jailhouse setting"). Van Poyck, 77 F.3d at 290-91 ("no prisoner should reasonably expect privacy in his [or her] outbound telephone calls" and "institutional security concerns justify such recordings"); Hammond, 286 F.3d at 193-94 ("Though the [federal surveillance law] does reflect congressional concern for protecting privacy, that concern does not extend to prison inmates, given their substantially reduced expectation of privacy."); Footman, 215 F.3d at 155 (citing Hudson v. Palmer, 468 U.S. 517 (1984), for the proposition, "[p]rison inmates have few expectations of privacy in their communications").

¶ 13. We therefore hold that so long as an inmate is given meaningful notice that his or her telephone calls over institutional phones are subject to surveillance, his or her decision to engage in conversations over those phones constitutes implied consent to such surveillance. Meaningful notice may include a signed acknowledgement form, an informational handbook or orientation session, a monitoring notice posted by the outbound telephone, or a recorded warning that is heard by the inmate through the telephone receiver, prior to his or her making the outbound telephone call. See Footman, 215 F.3d at 154 (signed form, notices on phones and prerecorded messages played when phone calls placed); Amen, 831 F.2d at 379 (federal prison regulations, orientation lecture, informational handbook and signs posted); Willoughby, 860 F.2d at 20 (orientation lecture, signs posted, signed form); Workman, 80 P.3d at 693 (posted signs, orientation handbook and signed form); Hammond, 286 F.3d at 191-92 (handbook, consent form, orientation lesson, and notices posted near phones); Horr, 963 F.2d at 1126 (orientation handbook and lesson, consent form, posted signs); Van Poyck, 77 F.3d at 292 (posted signs, consent form and prison manual); People v. Kelley, 127 Cal. Rptr. 2d 203, 206-07 (Ct. App. 2002) (citing federal cases for proposition that meaningful notice would include a monitoring notice posted by a phone "or a recorded warning that is heard by the inmate") (emphasis added; citation omitted).

¶ 14. Riley received the requisite meaningful notice. Prior to phone calls placed from the jail telephones, the inmates hear the SBC announcement. The announcement warns inmates that the call "may be recorded." The fact that the announcement contains the permissive modal auxiliary verb "may" rather than the obligatory modal auxiliary verb "will" is of no consequence. By using the permissive "may," the announcement does not, as Riley suggests, merely inform inmates that the jail has the "capability" to record telephone calls; it also raises the possibility that the jail would proceed to record the calls. Such notice — a prerecorded message played over the telephone system informing inmates that outgoing calls are subject to surveillance — is sufficient to hold that an inmate has impliedly consented to monitoring or recording.

¶ 15. Further, we are not persuaded by Riley's argument that he did not actually hear the SBC announcement. At the suppression hearing, Riley's attorney noted, "[w]hat we have here is we have an individual advised that his telephone conversations may be recorded." Also, the transcripts of Riley's phone calls evidence his awareness that his telephone calls could be monitored or recorded. Because Riley had meaningful notice that his calls were subject to recording, he consented to their interception when he used the jail's phone system.

Conclusion

¶ 16. In sum, we conclude that Riley consented to the monitoring and recording of his outgoing telephone calls from the Fond du Lac County jail. He received meaningful notice that his phone calls were subject to surveillance, but nonetheless chose to proceed with his calls. Therefore, his communications were lawfully intercepted under the WESCL and the evidence derived from the interceptions is admissible as long as the authentication procedures set forth in Wis. Stat. § 968.29(3) (b) are met.

By the Court. — Order reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The State also maintains that the WESCL's law enforcement exception applies. The State claims that "a law enforcement officer in the ordinary course of his or her duties" conducted the monitoring and recording of Riley's telephone conversations. See Wis. Stat. § 968.27(7)(a)2. Therefore, according to the State, law enforcement did not "intercept" Riley's communications and the WESCL does not apply. See § 968.27(9) (defining "intercept" as the "acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device" (emphasis added)); § 968.27(7)(a)2. (exempting from the definition of "electronic, mechanical or other device," monitoring and recording performed by law enforcement officers acting in the ordinary course of their duties). We will leave for another day the question of whether the monitoring and recording of jailhouse telephone calls falls outside the purview of the WESCL because it is conducted by law enforcement officers acting in the ordinary course of their duties. The record simply fails to provide us with the information we need to answer that question. Instead, we assume for purposes of this appeal, that the jail did intercept Riley's telephone calls and the WESCL's general prohibition on the interception of wire and oral communications absent court approval or authorization does apply. We will focus our attention on the State's contention that this case falls within the WESCL's one-party consent exception.

       The State seems to suggest that Riley's telephone conversations were "oral communications" as that term is defined in Wis. Stat. § 968.27(12). However, it appears that ordinary communication over a landline telephone, which was apparently used here, falls within the definition of "wire communication" found in § 968.27(17). See State v. Smith, 149 Wis. 2d 89, 94, 438 N.W.2d 571 (1989); State v. Maloney, 161 Wis. 2d 127, 131, 467 N.W.2d 215 (Ct. App. 1991). Wisconsin Stat. §§ 968.29(3)(b) and 968.31(2)(b) apply to both wire and oral communications; therefore, we need not discuss the issue further.

       The WESCL was designed to give law enforcement the authority to record the conversation of people suspected of serious crimes. State v. Gil, 208 Wis. 2d 531, 539, 561 N.W.2d 760 (Ct. App. 1997). It was carefully drafted, however, to prevent the "indiscriminate or uncontrolled or unsupervised use of electronic surveillance by law enforcement officers or agencies." Id. (citation omitted). The WESCL therefore represents a legislative compromise between law enforcement's need to detect and prosecute criminal activity and the public's desire for privacy. Id. at 540.

       Riley also suggests that we must interpret the WESCL differently than its federal counterpart because the WESCL contains a prohibition on the interception of communication between an attorney and a client and Title III does not contain such a prohibition. See Wis. Stat. § 968.30(10). However, we do not know from the scant record that the jail's monitoring and recording policy would even sweep in such privileged communication and therefore implicate § 968.30(10). Further, Riley does not assert that he made a call to his attorney that was improperly intercepted by the jail's recording system.

       In one conversation Riley states: "Don't say nothing about you know what." In a later call when the person he is calling asks, "What was you going to grab," Riley responds, "Over the phone?" The next day Riley states, "They trying to jam me. I can't explain it over the phone." Later that same day, Riley and the person he is calling have the following exchange:
      Female states, "The shit that they said was up in there."
      RILEY states, "There ain't no shit. Shut the fuck up. You don't ever say that again."
      Female states, "Why you yelling at me?"
      RILEY states, "What the fuck you think I'm yelling for?"
      Female states, 'You should, I can't say it, I'll write it in a letter."
      RILEY states, You don't write it in a letter. They read letters."
      Female states, Your kickers were never opened."
      RILEY states, "Shut the hell up! Damn! You've said enough already. If I understand, everybody else can too." (Emphasis added.)

       In our notice of oral argument, we asked the parties to debate whether the supreme court's decision in State ex rel. Arnold v. County Court of Rock County, 51 Wis. 2d 434, 443, 187 N.W.2d 354 (1971), continues to be viable given the subsequent amendments to the WESCL. In Arnold, our supreme court held that evidence derived from one-party consent surveillance, while lawfully obtained, was inadmissible. Id. at 444. The court explained that the WESCL, as written, drew a distinction between authorizing law enforcement to conduct one-party consent surveillance and permitting law enforcement to later disclose the results of such surveillance at trial. See id. at 442-43. At the time, the statute provided that law enforcement interception of communications in one-party consent situations was "not unlawful," but that only communications "intercepted in accordance with" the WESCL, or in other words communications intercepted with the approval of or authorization by a circuit court, could be disclosed by being admitted in evidence. See id. at 442. According to the court, by lowering the evidentiary value of one-party consent surveillance, the legislature intended to discourage law enforcement from using this method to gather evidence and thereby to protect the privacy rights of the general public. Id. at 442-43.
      Although the legislature has since created an exception to the admissibility requirements for one-party consent surveillance in felony cases, we conclude that the core message of Arnold has survived. The court's distinction between interception and admissibility may apply in other situations. Further, the legislature has not weakened the WESCL's protections for individual privacy. Thus, except for felony one-party consent interceptions, court authorization or approval is still required. Court authorization or approval is still required for interceptions of wire and oral communications covered by the WESCL to be admissible in court proceedings. See Wis. Stat. § 968.29(3)(a) (permitting the disclosure in court proceedings of communications intercepted "in accordance with ss. 968.28-968.37").


author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Xavier J. Rockette, Defendant-Appellant.

    Court of Appeals

      No. 2004AP2731-CR.

      Submitted on briefs June 22, 2005.

      Decided August 10, 2005.

    2005 WI App 205
    (Also reported in 704 N.W.2d 382.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy Provis of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and James M. Freimuth, assistant attorney general.
    Before Anderson, PJ., Brown and Nettesheim, JJ.

       Petition to review denied 10-14-05.

   BROWN, J.

¶ 1. The facts here are unique in that, while most Miranda issues involve situations where custodial questioning occurs without an officer reading warnings and without counsel present, this case is about a lawyer who, while present during questioning, instructed the officer not to read the Miranda warnings and told his client that if the warnings were not given, whatever he said could not be used in court. This unusual advice did not relieve the officer from reading the warnings — he should have. His failure to do so left open the probability that Xavier J. Rock-ette, the defendant in this case, believed — based upon his counsel's advice — that his statements could not be used against him in court. Thus, there was no knowing and intelligent waiver of the right to remain silent. Nonetheless, we hold that the error was harmless beyond a reasonable doubt because he would have pled no contest even without the statement he gave. The plea bargain reduced his exposure by a large amount, a significant incentive in light of the fact that the State had such a strong case against him even without the incriminating statements. We also address another, lesser issue and affirm the circuit court's decision in its entirety.

¶ 2. This case came about because of charges that arose out of events on three dates. The alleged facts on which those charges were based are as follows. On January 4, 2001, Gerald and Oliver Johnson parked their vehicle in the area of 22nd and Mead Street in the town of Mount Pleasant, Racine county. Oliver left the vehicle and was approached by two men. Gerald recognized Rockette, the shorter of the two, as an acquaintance he knew as "Zac" or "Zeke." An altercation ensued between Oliver and the two men in which Oliver received a severe beating, which caused brain damage that resulted in numerous disabilities. At one point, Rockette held Oliver while the other assailant hit him in the head with a pistol. When Gerald attempted to exit the vehicle to assist his brother, one of the men shot at him. Several additional shots were fired in his direction when, after the beating, Gerald attempted to put Oliver back in the vehicle.

¶ 3. At some later point, Gerald saw Rockette at the jail and pointed him out to jail personnel as the person who beat his brother. The individual informed him of Rockette's actual name. Gerald subsequently met with Investigator Doug Chausee and identified Rockette from a photo lineup. He also told Chausee that Rockette had two gold front teeth, a fact Chausee was aware of from interviewing Rockette on a prior occasion.

¶ 4. The other dates relevant to this appeal are January 20 and 21 when Rockette allegedly tried to avoid arrest. The allegations with respect to those dates were as follows. By January 20, the police had identified Rockette as a suspect in the incident described. On that date, an officer saw Rockette at a convenience store and arrested him. Rockette managed to escape, however, by wriggling out of the jacket he was wearing. At the time of his flight, he had a firearm on his person, which the police recovered from the abandoned jacket.

¶ 5. The police again encountered Rockette in a second incident later that night and into the early hours of January 21. He was in a vehicle with other people, all of whom fled. The police eventually caught up with him and took him into custody. They recovered a second firearm, which contained fingerprints from Rockette.

¶ 6. A complaint filed on January 30 charged Rockette with aggravated battery as a party to the crime, contrary to Wis. Stat. §§ 940.19(5) and 939.05 (2001-02), for the incident on January 4. The complaint added enhancers for committing the crime while armed, see Wis. Stat. § 939.63(l)(a) and (2), and as a habitual offender, see Wis. Stat. § 939.62.

¶ 7. On February 26, the circuit court dismissed another complaint relating to the night Rockette fled from the police and combined the charges therein with this case, essentially combining two separate prosecutions into one. The information charged Rockette with a second count arising out of the January 4 altercation, namely first-degree recklessly endangering safety, con trary to Wis. Stat. § 941.30(1). Count 2 also added enhancers for habitual offender status and committing a crime while armed. The information also added charges relating to the other complaint.

¶ 8. An amended information, dated March 2, included charges relating to the January 20-21 offenses. Counts 3 through 7 related to the events of January 20. These counts were as follows: (1) Count 3, resisting an officer, contrary to Wis. Stat. § 946.41(1); (2) Count 4, escape from custody, contrary to Wis. Stat. § 946.42(3)(a); (3) Count 5, carrying a concealed weapon, contrary to Wis. Stat. § 941.23; (4) Count 6, possession of a firearm by a felon, contrary to Wis. Stat. § 941.29(2); and (5) Count 7, obstructing an officer, contrary to § 946.41(1). Count 8 charged Rockette with a second count of possession of a firearm by a felon, contrary to § 941.29(2). All six new counts added the habitual offender enhancer. Although Count 8 appears to refer to the January 4 date, the State later clarified that it related to the gun recovered on January 21 during Rockette's second attempt to evade the authorities.

¶ 9. Defense counsel at some point arranged a meeting for March 14, at which Rockette, counsel, and Chausee were to be present. Although prior to that date Rockette had not agreed to speak with the police, counsel deemed the meeting to be in Rockette's interests, as counsel hoped Rockette would obtain some sort of consideration from the State in return for his cooperation. In particular, counsel knew the State was interested in obtaining information about several offenses involving Rockette's accomplice in the aggravated battery and other individuals.

¶ 10. Before the interview started, counsel advised Rockette that so long as he did not receive any Miranda warnings, nothing he admitted to could be used against him. Counsel also requested that Chausee not Mirandize his client. Chausee abided by that request and did not administer the warnings. During the meeting, Rockette gave statements, implicating himself in the January 4 incident. Specifically, he confessed that he was present at the scene of the battery with Lucas Gilliam, his alleged accomplice, and that he had a weapon.

¶ 11. Counsel withdrew from the case on May 18, after the court granted his motion to sever the charges arising from the events of January 20 and 21. After one unsuccessful substitution, new counsel entered the case, and the circuit court set a November trial date. That date was postponed to February 2002, however, to give defense counsel more time to explore a possible alibi defense.

¶ 12. The alibi defense never materialized. Defense counsel never submitted a list of alibi witnesses. In late January 2002, counsel learned about Rockette's statements to Chausee and noted that this information presented problems for an alibi defense. On January 28, the circuit court took the case off the trial calendar so that counsel could have a Miranda-Goodchild hearing on the admissibility of Rockette's confession. Two days later, counsel withdrew the alibi defense.

¶ 13. Counsel made his written motion to suppress in February, and the court heard arguments on the motion in March. The court issued a written decision denying the motion on April 18. The case was once again set for trial and rescheduled, with trial ultimately being reset at the adjourned January 27, 2003, final pretrial hearing. Counts 1, 2, and 8 would go to trial on April 1, and the remaining severed charges were to be tried on April 29.

¶ 14. The Friday prior to trial, Gerald signed a statement retracting his accusations against Rockette. He subsequently renounced that retraction, however, explaining to Chausee that Rockette's friends had attacked him and forced him to sign the statement. Gerald also informed the defense investigator that he was "100 percent standing behind" his original statements.

¶ 15. On Monday, March 31, the day before trial, defense counsel moved to withdraw from representation of Rockette, who had informed counsel that he would no longer communicate with counsel regarding his case. The court heard the motion the next morning. Rockette expressed dissatisfaction with counsel's performance and asked to represent himself or have a new lawyer appointed. The circuit court found that Rockette was simply refusing to cooperate with counsel and that he was doing so because he wanted to delay the trial and because he thought different rules applied to pro se defendants. Accordingly, it denied the motion to withdraw.

¶ 16. At the same hearing, the court granted the State's motion to admit evidence that Rockette fled from the police on January 20 by slipping out of his jacket. Although this evidence related to the severed charges, the court agreed that such evidence was relevant. It reasoned that Rockette had fled after the officer identified him as someone involved in the January 4 incident and therefore tended to show consciousness of guilt.

¶ 17. In addition to Rockette's flight from custody and his statements to Chausee, the State was prepared to present several other pieces of evidence to prove its case. First, Gerald, having renounced his statement repudiating his original accusations, showed up at trial with his brother, and the State intended to present his eyewitness testimony. Another witness the State planned to call, Lonnie Grandberry, claimed to have been present at the scene of the beating. In addition, the State planned to elicit Grandberry's testimony that Rockette had made a jailhouse confession to him in which he admitted his participation in the battery of Oliver. The State had also identified Terell Bolton as a third potential eyewitness.

¶ 18. Besides the eyewitnesses, the State also planned to call Elliot Campbell, a second inmate who would testify that Rockette had made a jailhouse confession to him. Counsel had warned Rockette in their previous discussions that he knew Campbell and that he was a believable, likeable witness who would "come off good to the jury."

¶ 19. On Wednesday, April 2, the parties showed up for the scheduled trial. Before the jury was brought in, the court inquired whether Rockette understood the State's final offer to plea. At that point, the assistant district attorney suggested that she meet with the defendant and defense counsel off the record to discuss that offer. The State's suggestion was accepted, and both sides reached an agreement.

¶ 20. Rockette agreed to plead to Count 2, recklessly endangering safety as party to the crime and as a habitual offender, and to Count 8, possession of a firearm by a felon. The enhancer in Count 8 was to be dropped, and Counts 1 and 3-7 were to be dismissed and read in. The plea agreement gave Rockette an exposure of thirty years, and the State agreed to recommend twenty while leaving to the court how to divide the time between incarceration and supervision and whether the sentence would be concurrent with or consecutive to any other sentences. Following a colloquy, the circuit court accepted Rockette's pleas of no contest.

¶ 21. On May 12, the circuit court granted counsel's motion to withdraw from representation, and on September 23, new counsel filed a motion to withdraw Rockette's plea. The court took evidence and heard arguments on the motion on October 31, November 5 and December 8. Concluding that "Rockette's claim that he was coerced into a hasty decision" by trial counsel's lack of preparation had no support in the record, the court denied his motion in a December 12, 2003 decision. The case proceeded to sentencing on February 10, 2004.

¶ 22. Rockette appeals the order that denied his motion to suppress his confession to Chausee and the judgments of conviction. He first renews his argument that the statements he made concerning the January 4 incident were made without Miranda warnings and therefore should not have been admissible against him. Whether a defendant made a valid waiver of his or her Miranda rights presents a question of constitutional fact. State v. Santiago, 206 Wis. 2d 3, 18, 556 N.W.2d 687 (1996). We review the ultimate issue of waiver de novo, benefiting from the circuit court's analysis, but we will not set aside the court's findings of historical or evidentiary fact unless they are clearly erroneous. See id.; State v. Turner, 136 Wis. 2d 333, 343-44, 401 N.W.2d 827 (1987).

¶ 23. The State has the burden of proving, by a preponderance of the evidence, that the defendant received his or her Miranda warnings or made a valid waiver of rights. State v. Raflik, 2001 WI 129, ¶ 55, 248 Wis. 2d 593, 636 N.W.2d 690. A valid waiver must be knowing and intelligent. See id. Moreover, the suspect must personally waive his rights. See State v. Hanson, 136 Wis. 2d 195, 213, 401 N.W.2d 771 (1987). If the State fails to meet its burden of proving an effective waiver, the improperly admitted statements are inadmissible in its case-in-chief. See State v. Schultz, 152 Wis. 2d 408, 417-18, 448 N.W.2d 424 (1989). It may, however, use the statements as impeachment evidence so long as the statements were otherwise voluntary and not the product of coercion. Id. at 418.

¶ 24. We conclude that Rockette did not waive his Miranda rights. Rockette does not argue that Chausee did anything to coerce his confession. Indeed, the purpose of Rockette's cooperation at the interview, which his own counsel set up, was to increase his chances of securing some leniency from the State. Thus, his statements were voluntary. Despite the fact that the statements were voluntary, however, we cannot say that an intelligent waiver occurred. First, Rockette never personally indicated that he wished to waive his rights. Counsel could not do that for him by simply arranging a meeting with the police. See Hanson, 136 Wis. 2d at 213. Moreover, we cannot say that any purported waiver was knowing and intelligent. Rockette's statements were clearly admissible for impeachment purposes, see Schultz, 152 Wis. 2d at 417-18, yet, by telling Rockette that whatever he said could not be used against him, his attorney led him to believe that his statement could not he admitted in court at all. Rockette obviously did not know and understand the potential consequences of making a voluntary confession to the police because his counsel gave him erroneous information.

¶ 25. To its credit, the State concedes that a Miranda violation probably occurred. It argues, however, that based on State v. Semrau, 2000 WI App 54, ¶ 22, 233 Wis. 2d 508, 608 N.W.2d 376, the error was harmless. In Semrau, we stated, "In a guilty plea situation following the denial of a motion to suppress, the test for harmless error on appeal is whether there is a reasonable possibility that the erroneous admission of the disputed evidence contributed to the conviction." Id.] see also State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 631, 579 N.W.2d 698 (1998) (no contest plea similar in practical effect to guilty plea).

¶ 26. Whether to apply Semrau to the facts of this case presents a question of law that we review independently. See State v. Keith, 216 Wis. 2d 61, 69, 573 Wis. 2d 888 (Ct. App. 1997) (choosing what legal standard to apply is a legal question we review without deference). We decline to do so in this case in light of the supreme court's recent decision in State v. Hale, 2005 WI 7, 277 Wis. 2d 593, 691 N.W.2d 637. In Hale, the court articulated the following harmless error rule for constitutional error: "An error is harmless if the beneficiary of the error proves 'beyond a reasonable doubt that the error complained of did not contribute to the [result].'" Id., ¶ 60 (citation omitted). The court may consider, among other factors, the frequency of the error, the importance of the erroneously admitted evidence, the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence, whether the improperly admitted evidence duplicates untainted evidence, the nature of the defense, and the nature and overall strength of the State's case. Id., ¶ 61; see State v. Norman, 2003 WI 72, ¶ 48, 262 Wis. 2d 506, 664 N.W.2d 97. We independently apply Hale to the facts of this case. See State v. Trochinski, 2002 WI 56, ¶ 16, 253 Wis. 2d 38, 644 N.W.2d 891 (application of facts to legal standard a question of law we review de novo).

¶ 27. We conclude that the result in this case would have been the same beyond a reasonable doubt even if the circuit court had granted Rockette's suppression motion, given the overwhelming incentives Rock-ette had to plead rather than go to trial. First, the State had an extremely strong case. Both Gerald and Grand-berry would definitively place Rockette at the scene as a participant, and the State had Bolton as a potential third eyewitness. Theoretically, Rockette could have tried to impeach Gerald with his March 27 recantation, but Gerald's explanation that he had disavowed his original accusations only because Rockette's friends had assailed him and forced him to sign the retraction statement before he escaped from their vehicle would have been equally powerful circumstantial evidence of guilt.

¶ 28. Moreover, Grandberry and Campbell would testify that Rockette had made jailhouse confessions to them. Grandberry would indicate that Rockette admitted at least to Count 1 of the information, the aggravated battery. The State has characterized the two confessions as "internally very consistent." Further, defense counsel had warned his client that he knew Campbell and that the witness would likely "come off good to the jury."

¶ 29. In addition to the above evidence, the State intended to introduce Rockette's January 20 flight from police. Because the arresting officer had identified him as a suspect in the January 4 incident, his flight reflected consciousness of guilt. In light of the eyewitness testimony and jailhouse confessions identifying Rockette as one of the participants in the battery and the other circumstantial evidence of guilt, namely, attempts by Rockette's friends to intimidate the victim's brother, Rockette's admissions to Chausee were largely cumulative.

¶ 30. Rockette had a comparatively weak defense. He never developed a viable alibi theory. Defense counsel at one point asked for an extension of time in order to meet with two potential witnesses, but at that point, he did not even know whether they were, in fact, alibi witnesses. The record does not identify these individuals or what testimony they might have offered. Even if alibi had remained a viable theory of defense and the circuit court had granted Rockette's suppression motion, the State could have used Rockette's statements to Chausee as impeachment evidence. See Schultz, 152 Wis. 2d at 418 (statements obtained in violation of Miranda inadmissible in case-in-chief but permitted for impeachment purposes so long as statements were otherwise voluntary).

¶ 31. In addition to the comparative strength of the State's case versus Rockette's defense and the fact that the confession largely duplicated other evidence, Rockette had a compelling incentive to plead in order to reduce his exposure to incarceration. For all eight counts combined, Rockette faced a maximum sentence of ninety-six years. The plea offer cut his maximum exposure down to thirty years, reducing the maximum sentence by more than two-thirds. Additionally, the State agreed to recommend only twenty years, seventy-two years less than his original maximum exposure. Given all these factors, we conclude that no reasonable doubt remains that Rockette would have accepted the plea regardless of the circuit court's decision on his motion to suppress.

¶ 32. Rockette also challenges his convictions on the basis that the circuit court denied his constitutional right to retain the counsel of his choice by refusing to allow him to proceed either pro se or with a new attorney. We deem this argument waived. See Trochinski, 253 Wis. 2d 38, ¶ 34 n.15 ("A plea of no contest waives all non-jurisdictional defects in the proceedings." (citation omitted.)). Accordingly, we decline to address it.

¶ 33. We affirm. Rockette's counsel gave him questionable advice that made a knowing and intelligent waiver of his rights impossible. Rockette did not know his statements could be used at trial to impeach him because his attorney had told him exactly the opposite. Regardless of whether a Miranda violation occurred, however, we are convinced beyond a reasonable doubt that the strength of the State's case, the weakness of Rockette's case, the largely cumulative nature of the confession, and the incentive to reduce his sentencing exposure would have led Rockette to accept the State's offer. Moreover, he waived his right to counsel claim when he accepted the plea.

By the Court. — Judgments and order affirmed.

        See Miranda v. Arizona, 384 U.S. 436 (1966).

       All references are to the 2001-02 version of the Wisconsin Statutes unless otherwise noted. Please refer to language effective prior to February 1, 2003, where applicable.

        "Goodchild" refers to State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965).

       The circuit court later moved the trial of Count 8 — after the State noticed that the January 4 date on the information should have been January 21 — so that it would be tried with the other severed charges. Apparently the incorrect date on the information initially led to the charge not being properly severed.

       The record contains multiple spellings of this witness' name.