author: BROWN, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jeffrey S. Kimbrough, Defendant-Appellant.

    Court of Appeals

      No. 00-2133-CR.

      Submitted on briefs March 21, 2001.

    Decided May 30, 2001.

    2001 WI App 138
    (Also reported in 630 N.W.2d 752.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Glenn L. Cushing, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

       Petition to review denied.

   BROWN, P.J.

¶1. Jeffrey S. Kimbrough appeals from judgments of conviction for first-degree reckless homicide, contrary to WlS. Stat. § 940.02 (1997-98), and child abuse, contrary to WlS. Stat. § 948.03(2)(a) and (5) (1997-98). Kimbrough also appeals from the order denying his motion for postcon-viction relief. On appeal, Kimbrough asserts that the State failed to establish beyond a reasonable doubt that he was subjectively aware that his conduct created an unreasonable and substantial risk of death or great bodily harm. Kimbrough also asserts that he was denied the effective assistance of counsel because his attorney failed to request that the offense of second-degree reckless homicide be submitted to the jury. We determine that the jury could reasonably infer Kim-brough's awareness of the risk from the nature of his conduct and statements he made after the victim was injured. We also hold that Kimbrough was not denied the effective assistance of counsel where the record shows that a reasonable attorney could have chosen an all-or-nothing approach as an objectively reasonable defense strategy.

¶ 2. Kimbrough's jury convictions stemmed from the death of five-and-one-half-month-old Anthony Beaton. The cause of death was shaken baby syndrome with impact. Kimbrough was dating Anthony's mother, April Beaton, at the time the following events unfolded.

¶ 3. On July 23, 1998, Kimbrough was babysitting Anthony and Beaton's other two children, Alexis and Deja, ages three years and fifteen months, respectively. Beaton testified that she returned home to find bruises on Anthony's face. Anthony kept crying, could not hold his head up, and would not eat normally. According to Beaton, Kimbrough suggested that maybe Deja had hit Anthony with a toy.

¶ 4. Beaton's concern increased the next morning and she took Anthony to Dr. Scott Meyer on Friday, July 24, 1998. Beaton told the doctor that Anthony acted like he had a concussion and that he had possibly been hit with a toy. Meyer examined Anthony carefully, because the possibility of abuse had occurred to him. He noticed mild bruising around the child's left eye, extending towards the temple and left ear. Anthony was irritable, but not in acute distress. There was no swelling, no other bruises and full eye movement. There was no bulging of the child's soft spot or fontanelle, which would have indicated cerebral edema or brain swelling. He diagnosed an ear infection and prescribed an antibiotic.

¶ 5. Beaton and Anthony returned home, where he continued to be irritable, crying and eating abnormally. Kimbrough babysat the children again on Friday while Beaton worked. She was told that Anthony seemed better and had been laughing and playing with Kimbrough.

¶ 6. By Saturday afternoon, July 25, 1998, Anthony's condition deteriorated while Beaton was out getting food. One of her roommates, Lindsey Brieske, discovered that Anthony was in distress, was having trouble breathing and had no heartbeat. She called 911, and Anthony was transported to the hospital where he remained in intensive care.

¶ 7. Although Anthony was subsequently released to his mother's care, he eventually died during the early morning hours of November 8,1998. Both the medical examiner who conducted the autopsy and Dr. Stephen Lazoritz, a child abuse specialist, concluded that Anthony died from shaken baby syndrome with impact.

¶ 8. Detective Rick Ladd interviewed Kimbrough at the hospital where Anthony was in intensive care on July 30,1998, and was present when Detective Michael Payne took his statement on August 7, 1998. At the hospital, Kimbrough told Ladd that one of the other children told him Anthony had been hit with a toy. He offered no other explanation for what happened to Anthony.

¶ 9. When subsequently interviewed at the police station on August 7, the detectives expressed their belief that Kimbrough's explanation was not consistent with Anthony's injuries and their belief that Anthony was injured while in his care. Kimbrough denied shaking Anthony. Kimbrough then told the detectives that he had been weak from the flu and dropped Anthony to the floor. He was told that the injuries were more serious than that and was asked if he threw the baby. He then said that he had thrown Anthony into the couch. Again the detectives indicated that something more serious than that had happened to Anthony. Kim-brough then admitted to the detectives that he had wanted to lie down so he shook Anthony to keep him quiet. He admitted that the baby's head hit the wall. He also demonstrated for the detectives how he shook the baby, which both detectives re-enacted for the jury during testimony.

¶ 10. At trial, both the State and the defense called clinical psychologists who agreed that Kim-brough was of borderline intelligence with an IQ in the mid-seventies. Kimbrough's psychologist described him as having a limited knowledge of common words and underdeveloped social comprehension. His mental capacity was "roughly comparable to a mental age of an average 12 year old child." The State's psychologist was "more in agreement than disagreement" with the defense psychologist.

¶ 11. At the close of evidence, the jury received an instruction that in determining if Kimbrough knew of and understood the danger of shaking a baby, it must consider his limited intellectual functioning and the fact that his intellectual age is that of a twelve-year-old child. On appeal, Kimbrough now argues the evidence was insufficient for the jury to find that he was subjectively aware of the unreasonable risk of death or great bodily harm caused by shaking a baby. He also makes a claim of ineffective assistance of counsel.

Subjective Awareness of the Risk

¶ 12. The test for sufficiency of the evidence to convict is highly deferential. We may not reverse unless the evidence is so insufficient in probative value and force that as a matter of law, no reasonable fact finder could have determined guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). In applying this test, we view the evidence in the light most favorable to the conviction. Id. We also recognize that when the defendant's state of mind is at issue, direct proof of mental state is rare. State v. Hoffman, 106 Wis. 2d 185, 200, 316 N.W.2d 143 (Ct. App. 1982). In such cases, the jury may base its findings regarding the defendant's mental state upon circumstantial evidence and the reasonable inferences such evidence permits. Johnson v. State, 85 Wis. 2d 22, 32, 270 N.W.2d 153 (1978).

¶ 13. In order to obtain a conviction under WlS. Stat. § 940.02 (1997-98), the State must prove the four elements of first-degree reckless homicide:

1. The defendant caused someone's death;
2. By actions that created "an unreasonable and substantial risk of death or great bodily harm";
3. That the defendant was "aware of that risk"; and
4. The circumstances "show[ed] [the defendant's] utter disregard for human life."

State v. Edmunds, 229 Wis. 2d 67, 75, 598 N.W.2d 290 ( Ct. App. 1999) (citation omitted). The required mental state under this statute is criminal recklessness and encompasses the second and third elements of first-degree reckless homicide. Id. Criminal recklessness requires both an objectively unreasonable and substantial risk of death or great bodily harm and the actor's subjective awareness of the risk. Id. Thus, there are both objective and subjective components to the requisite mental state for first-degree reckless homicide.

¶ 14. Here, Kimbrough does not contest the sufficiency of evidence proving the objective component, that his conduct created an unreasonable and substantial risk of death or great bodily harm. Rather, he contests the subjective component, the sufficiency of evidence establishing that he was subjectively aware of that risk at the time of his conduct. He points to the following evidence as showing that in fact he was not aware of the risk: (1) he is of limited intelligence, (2) there is police testimony that he did not comprehend that his conduct posed a serious risk, and (3) there is expert opinion testimony that large numbers of people still do not realize the serious consequences which can result from shaking a baby.

¶ 15. With respect to Kimbrough's limited intellectual capacity, we note that while expert testimony established he had below average intelligence, it did not establish that he is mentally retarded. In addition, while the State's psychologist testified that Kim-brough's general ability to anticipate consequences was underdeveloped compared to an average person, the testimony did not establish that Kimbrough was unable to appreciate the risk of shaking a baby. Although Lazoritz testified that large numbers of the population do not recognize the serious consequences that can result from such action, he also commented that with regard to "people who don't read a lot but watch TV, there are TV spots that say never shake a baby...."

¶ 16. The most persuasive evidence that defense counsel presented on the issue of subjective awareness was the testimony of Payne and Ladd. Payne testified that during the investigation, he asked Kimbrough whether he knew why we do not shake children. Kim-brough's response was that he did not know then, but he does now. Ladd testified that in his opinion, Kim-brough did not realize the seriousness of shaking a baby:

I do not believe that it was his intention to cause those injuries. I believe that his actions produced the injuries, and so I couldn't classify them totally or completely as accidental. It was just some unfortunate occurrence. I would say that he did not understand or did not realize how serious shaking a baby would be and I don't think he intended to injure the baby in the way the baby was injured, but it was a direct result of actions that he did take.

¶ 17. The State argues that the jury could nonetheless reasonably infer Kimbrough's subjective awareness of the risk from statements he made after the injury occurred. The record clearly establishes that Kimbrough lied about his conduct to Anthony's mother and later to the police detectives as well. On the day he injured Anthony, Kimbrough's explanation for the benign bruising was that another child had hit Anthony with a toy. Later, as the signs of serious injury became apparent, Kimbrough told the detectives the same story. When they expressed disbelief, he claimed to have dropped Anthony to the floor. Again, when the detectives expressed doubt about this explanation, Kimbrough claimed to have thrown Anthony on a couch. Finally, he admitted to shaking Anthony and striking the baby's head against the wall.

¶ 18. While there may be other explanations for Kimbrough's reluctance to tell the victim's mother and the police that he shook the baby, the jury could reasonably infer that the reason he lied was that he was aware of the risk his conduct posed. Indeed, the progressively escalating admissions of Kimbrough could lead to the reasonable inference that he was attempting to cover up his involvement in the crime. We concur with the view expressed in case law that such escalating admissions may be used by the jury to infer the defendant's subjective awareness of the risk posed by shaking a baby.

¶ 19. State v. Evans, 594 A.2d 154 (N.H. 1991), involved facts very similar to the instant case. In Evans, the mother returned home to find her infant bruised, burned and bleeding. Id. at 155-56. The defendant caretaker explained that the victim had fallen off the couch. He told the mother that the burns were also accidental. Id. at 156. At first the baby improved, but as days passed she deteriorated and had to be hospitalized. Id. Hospital tests revealed that the injuries were due to violent shaking. Id. When questioned by police, the defendant suggested the injuries were due to falling from the couch, falling from his arms, or being "flipped." Id. at 157. After police expressed the belief that the injuries had resulted from extreme shaking, he confessed. Id.

¶ 20. As in this case, the defendant argued on appeal that the evidence was insufficient to show his subjective awareness of the risk posed by shaking an infant. The court rejected this view, holding that "[h]is attempts to deny the shaking of the baby could lead the jury to find that his actions were anything but innocent. He avoided that element of potential cause, even though the shakings were close in time to the findings of injury." Id. at 160.

¶ 21. Similarly, in Terrell v. State, 27 S.W.3d 423 (Ark. 2000), the court found that the defendant's conduct in giving different versions of his actions to medical and other authorities belied his assertion that he did not know the risk of shaking a baby. Id. at 426. "In fact, appellant's failure to disclose the shaking incidents to authorities basically amounts to an attempt to cover up his connection to the crime. This attempt was before the jury, and the jury could have properly considered evidence of cover-up as proof of a purposeful mental state." Id.

¶ 22. Kimbrough asserts that the evidence establishes only his awareness immediately after the conduct, that he had behaved improperly with the child, or later, that his conduct had caused serious injury and death. He contends it is insufficient to establish the requisite awareness of the risk at the time of injury. Kimbrough offers no authority to support this position. Moreover, the Evans court addressed a similar argument and we agree with its response that whether the evidence establishes awareness at the time of the shaking incident, rather than afterward, is a matter for determination by the jury. Evans, 594 A.2d at 160.

¶ 23. While the record contains evidence that both supports and contradicts the proof of Kimbrough's mental state, it was well within the function of the jury to determine which evidence was most credible and to make the appropriate inferences. We are convinced that a reasonable jury could conclude that Kimbrough was aware of the risk of serious bodily injury or death resulting from shaking a baby.

Ineffective Assistance of Counsel

¶ 24. We now address Kimbrough's second basis for appeal, that he received ineffective assistance of counsel because his trial counsel did not request a-lesser-included offense instruction of second-degree reckless homicide. At the postconviction motion hearing, trial counsel testified that he had intended to request that the jury be given the option of convicting Kimbrough of the lesser-included offense, but he inadvertently failed to do so. He explicitly stated he was not pursuing an all-or-nothing defense strategy and that he believed the better strategy was to give more options to the jury. The trial court made a finding of fact that defense counsel never intended to request the lesser-included offense instruction. It concluded that the performance of defense counsel at trial was not deficient as a matter of law.

¶ 25. On this appeal, Kimbrough points out that the testimony of trial counsel at the postconviction hearing was uncontroverted. Because the record does not indicate that this testimony was incredible, Kim-brough asserts that the trial court's findings contrary to this testimony must be clearly erroneous as a matter of law.

¶ 26. To establish an ineffective assistance of counsel claim, a defendant must show both that counsel's performance was deficient and that he or she was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). A reviewing court may dispose of a claim of ineffective assistance of counsel on either ground. Id. at 697. Consequently, if counsel's performance was not deficient the claim fails and this court's inquiry is done.

¶ 27. We review the denial of an ineffective assistance claim as a mixed question of fact and law. Id. at 698. We will not reverse the trial court's factual findings unless they are clearly erroneous. State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). However, we review the two-pronged determination of trial counsel's effectiveness independently as a question of law. Id. at 128.

¶ 28. As we noted, Kimbrough asserts that the trial court was clearly erroneous in rejecting defense counsel's averment at the motion hearing. We understand Kimbrough to argue that a statement must be contradicted in the record as a condition precedent to the trial court's review of the statement's credibility. In other words, Kimbrough argues that the trier of fact must find true, as a matter of law, the testimony of a witness that is unimpeached and not inherently unreliable. If this is indeed his argument, the law is to the contrary.

¶ 29. A trial court has the responsibility, when acting as a trier of fact, to determine the credibility of each witness. Gauthier v. State, 28 Wis. 2d 412, 416, 137 N.W.2d 101 (1965). Atrial court can properly reject even uncontroverted testimony if it finds the facts underpinning the testimony are untrue. See, e.g., Breunig v. Am. Family Ins. Co., 45 Wis. 2d 536, 544-45, 173 N.W.2d 619 (1970) (upholding verdict based upon jury's rejection of uncontroverted expert opinion testimony regarding negligent actor's mental disability). Even when a single witness testifies, a trial court may choose to believe some assertions of the witness and disbelieve others. Nabbefeld v. State, 83 Wis. 2d 515, 529, 266 N.W.2d 292 (1978). This is especially true when the witness is the sole possessor of the relevant facts. See Ring v. State, 192 Wis. 391, 394, 212 N.W. 662 (1927). "If it were the law that the testimony of a witness in a given case, on a subject which is solely within his knowledge, must be taken as true one hundred per cent., justice in many instances would miscarry. It is the province of the [trier of fact] to carefully scan and review the entire evidence in connection with all the facts and circumstances of the case, and thereupon render [a] verdict. . . ." Id. at 395. We conclude, therefore, that the trial court in this case was free to accept or reject all or any portion of defense counsel's testimony as it deemed credible.

¶ 30. In this instance, the trial court, acting as trier of fact, did not find credible defense counsel's explanation for his conduct. The trial court clearly and meticulously described those parts of the record that supported its factual finding that the failure to request the lesser-included offense was deliberate rather than inadvertent. The court pointed out that the possibility of including second-degree reckless homicide was never mentioned during opening statements. In addition, defense counsel thoughtfully and carefully prepared two special jury instructions over a long weekend that did not include the lesser-included offense. The court concluded:

The assertion today is that second degree reckless homicide was a part of the theory of defense but it by inadvertence, by forgetting, it just wasn't included. And yet when we look to all the opportunities before trial, during the trial, during the three-day break in the trial, during the ... instruction and verdict conference, during the arguments that were made, and then after the instructions were actually given when there was also an opportunity to [sic] was there anything else, are they acceptable; still, the matter was not . . . presented as an issue that was a part of the theory of the defense to include second degree reckless homicide.

We hold that the finding of the trial court is supported by the record and not clearly erroneous as a matter of law.

¶ 31. Moreover, our function upon appeal is to determine whether defense counsel's performance was objectively reasonable according to prevailing professional norms. Strickland, 466 U.S. at 688. We have no doubt whatsoever that in this instance counsel's conduct was objectively reasonable. See United States v. Smith, 10 F.3d 724, 728 (10th Cir. 1993). In Smith, the Tenth Circuit Court of Appeals held that defense counsel's failure to request a lesser-included offense instruction was reasonable despite counsel's subjective averment that he overlooked the availability of such a defense. Id. at 728-29. The court found that, considering all the circumstances, such a decision would have been reasonable if defense counsel had made it for strategic reasons. Id. at 729.

¶ 32. Applying the reasoning of Smith to this case, if defense counsel here had chosen for strategic purposes to avoid the lesser-included defense instruction, the decision would have been imminently reasonable under the circumstances. The record demonstrates Kimbrough had two theories of defense: that he did not shake the baby and, if he did, he was not subjectively aware of the risk his conduct created. Kim-brough testified in his own defense and also put on witnesses to support his contention that he was not aware of the dangerousness of his conduct to the well-being of the baby. This evidence, which we discussed in the previous portion of this opinion, was not weak and a reasonable attorney might decide that an all-or-nothing strategy was viable. It would not be unreasonable, in other words, to go for acquittal rather than risk conviction of second-degree reckless homicide. This approach would also avoid confusing the jury with another alternative defense and focus the jury's attention upon factors sympathetic to Kimbrough, such as his low intelligence and inexperience with children. We are satisfied that defense counsel's actual representation was well within the range of objectively reasonable representation under all the circumstances.

¶ 33. Kimbrough argues that this is an "invent-a-strategy" approach to review of ineffective counsel claims that undermines the procedure outlined in State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979). Kimbrough asks us to adopt the reasoning in Harris v. Reed, 894 F.2d 871 (7th Cir. 1990), in which the Seventh Circuit Court of Appeals stated that "[j]ust as a reviewing court should not second guess the strategic decisions of counsel with the benefit of hindsight, it should also not construct strategic defenses which counsel does not offer." Id. at 878. This statement, however, was made in the context of a felony murder case with very different facts.

¶ 34. In Harris, defense counsel refused to offer a theory of defense after the prosecution rested its case. Id. at 874. Not a single witness was called to the stand, even though the record indicated witnesses were available who would identify another person as the assailant. Instead, counsel decided to tempt the fates by resting on the perceived weakness of the prosecution's case. Id. at 878-79. The court found that the district court had denied the ineffective assistance claim based upon a trial strategy that trial counsel had not offered. Id. Looking objectively at counsel's overall performance at trial, the court concluded that his conduct fell outside the wide range of professionally competent assistance. Id. at 877-79.

¶ 35. Clearly, the reasoning in Harris does not require a reviewing court to view defense counsel's subjective testimony as dispositive of an ineffective assistance claim. Such testimony is simply evidence to be considered along with other evidence in the record that a court will examine in assessing counsel's overall performance. Consequently, we hold that defense counsel's representation of Kimbrough was objectively reasonable under all the circumstances and ensured that Kimbrough received a fair trial. Therefore, Kim-brough has failed to demonstrate that his representation was constitutionally deficient.

¶ 36. In conclusion, we hold that the evidence was sufficient for the jury to have drawn the appropriate inference that Kimbrough acted with criminal recklessness in causing the death of Anthony. We also hold that defense counsel's representation of Kim-brough was well within the range of professionally competent assistance. Therefore, we affirm.

By the Court. — Judgments and order affirmed.

       Because Kimbrough was arrested in 1998, we refer to that version of the applicable statute. All other references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       During the trial, defense counsel elicited testimony from Dr. Paul Voelkel, a psychologist, that persons with limited intellectual capacity are more open to suggestion during police interrogation and more easily intimidated, and therefore less likely to give reliable confessions. Kimbrough testified the reason he gave different explanations for the victim's injuries was that "I told [the detectives] the truth and they didn't believe me, so I didn't know what else to say."

       In its brief, the State urges this court to follow the approach of People v. Kendall, 678 N.Y.S.2d 182 (N.Y. App. Div. 1998), in which it was held that the circumstances surrounding the death of a shaken infant can be sufficient, standing alone, to prove the defendant's state of mind. Because a jury could infer Kimbrough's awareness of the risk from statements he made to police, we need not address whether the risk of danger to a baby from vigorous shaking is so obvious that the jury could infer Kimbrough's awareness on that basis alone.

       The elements of second-degree reckless homicide include all of the elements of first-degree reckless homicide except for proof that the crime occurred under circumstances which show utter disregard for human life. Compare Wis. STAT. § 940.02 (1997-98) with Wis. STAT. § 940.06 (1997-98).

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


source: Caselaw Access Project

author: HOOVER, P.J.

license: Public Domain

text:
    Lorie Novak, Plaintiff-Appellant, v. Reginald Phillips and Gunville Trucking Inc., a Wisconsin Corporation, Defendants-Respondents.
    Court of Appeals

      No. 00-2416.

      Submitted on briefs February 27, 2001.

    Decided May 15, 2001.

    2001 WI App 156
    (Also reported in 631 N.W.2d 635.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Paul D. Poulson and Mouw & Celello, P.C. of Iron Mountain, MI.
    On behalf of the defendant-respondent Reginald Phillips, the cause was submitted on the brief of Craig T. Maxwell of Green Bay. On behalf of the defendant-respondent Gunville Trucking, Inc., the cause was submitted on the brief of John W. Zawadsky and Jill D. Hamill and Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C. of Madison.
    Before Cane, C. J., Hoover, P. J., and Peterson, J.
   HOOVER, P.J.

¶ 1. Lorie Novak appeals an order dismissing her case for failure to properly sign and file her summons and complaint, contrary to Wis. Stat. §§ 801.09(3) and 802.05(l)(a). She contends that a rubber-stamped imprint of her counsel's handwritten signature satisfies the statute. Alternatively, she argues that even if it does not satisfy the statute, counsel timely corrected the error. Further, if the error was not timely corrected, she argues that it is nevertheless merely a technical error that has not prejudiced the defendants. Finally, she contends that the trial court erred when it denied her motion to amend her complaint.

¶ 2. We conclude that a stamped reproduction of a signature does not satisfy Wis. Stat. §§ 801.09(3) or 802.05(l)(a) and that correcting the signature a year after receiving notice is not timely under § 802.05(l)(a). We further conclude that although the error is technical, it has prejudiced the defendants. However, because the trial court applied an improper standard in its analysis of the motion to amend the pleadings, we remand for it to reexamine this issue.

BACKGROUND

¶ 3. Novak's employer hired Gunville Trucking, Inc., to teach Novak how to drive a semi-tractor trailer. Novak brought this action claiming that Reginald Phillips, a Gunville employee who was supposed to be training her, sexually assaulted and battered her. She brought this action against Phillips to recover damages resulting from the sexual assault and battery. She also sued Gunville, alleging that it negligently hired and supervised Phillips. Novak further alleged that Phillips and Gunville had interfered with her employment contract and breached their contractual duty to train her.

¶ 4. Novak's counsel filed a timely summons and complaint and served authenticated copies upon the defendants. However, the documents bore his rubber-stamped signature instead of a handwritten signature.

¶ 5. Both Phillips' and Gunville's answers included an affirmative defense claiming that the summons was insufficient because it was not subscribed with the handwritten signature of the plaintiff or plaintiff s counsel.

¶ 6. One year later, Phillips and Gunville gave Novak's counsel, Paul Poulson, notice that they intended to file motions to strike the summons and complaint because of the rubber-stamped signature. Poulson then submitted documents with handwritten signatures and an affidavit stating that he and another attorney had investigated the claim prior to filing it. His affidavit further stated that his signature was stamped on the summons and complaint with his knowledge and permission, with the intent to constitute the certification required under Wis. Stat. § 802.05(l)(a). He testified via affidavit that he had performed all statutory requirements that the signature was intended to represent.

¶ 7. Both defendants brought motions to strike based on counsel's failure to properly subscribe the summons and complaint with his handwritten signature. The court granted the motion. Novak's counsel orally requested permission to file an amended complaint pursuant to Wis. Stat. § 802.09. After further briefing, the court denied the request to amend and dismissed the case. Novak now appeals the order dismissing her claim and denying her motion to amend the summons and complaint.

ANALYSIS

I. Statutory Framework

¶ 8. A civil action is commenced in accordance with Wis. Stat. § 801.02(1), which provides:

A civil action in which a personal judgment is sought is commenced as to any defendant when a summons and a complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant under this chapter within 90 days after filing.

¶ 9. Wisconsin Stat. § 801.09(3) requires that "[t]he summons shall be subscribed with the handwritten signature of the plaintiff or attorney . . . ." This requirement is also applicable to the complaint under Wis. Stat. § 802.05(l)(a), which outlines the purpose of a handwritten signature:

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

However, failure to sign the summons or complaint is not fatal to the action if it is "signed promptly after the omission is called to the attention of the pleader or movant." Id. Further, if the defect does not affect the substantial rights of a party, the court must disregard the error. WlS. STAT. § 805.18(1).

Whether the Rubber-Stamped Signature is a Defect J — < HH

¶ 10. First, Novak contends that the summons and complaint have no defects. She contends that the rubber-stamped imprint of her counsel's signature satisfies the statutory requirements and purpose. We disagree.

¶ 11. Wisconsin Stat. § 802.05(l)(a) unambiguously requires that the attorney's signature be handwritten, certifying that the case was investigated, is well founded in fact and law and is not being used to harass the defendants. A rubber stamp affixing a signature is not a handwritten signature but, rather, is a reproduction of a handwritten signature.

¶ 12. Novak nevertheless cites Kocinski v. Home Ins. Co., 147 Wis. 2d 728, 433 N.W.2d 654 (Ct. App. 1988), to argue that a rubber-stamped signature is sufficient to "subscribe" a summons and complaint. Kocinski held that a rubber-stamped signature satisfied Wis. Stat. § 807.05, which governs stipulations. Kocinski, however, is not applicable to the instant case because § 807.05 only requires that the paper be "subscribed" by the attorney. On review, the supreme court stated that "the court of appeals correctly pointed out that the requirement that a name be 'subscribed' is to be distinguished from the requirement that there be a 'signature.'" Kocinski v. Kocinski, 154 Wis. 2d 56, 64, 452 N.W.2d 360 (1990). Wisconsin Stat. §§ 801.09(3) and 802.05(l)(a) require handwritten signatures. Kocinski does not govern this case.

¶ 13. Novak next argues that a stamped signature satisfies dictionary definitions of "subscribed." This argument fails under Kocinski. Moreover, not only does Wis. Stat. § 805.02(l)(a) require that the summons and complaint to be subscribed with a "handwritten signature," but Wis. Stat. § 990.01(38), further provides: "If the signature of any person is required by law it shall always be the handwriting of such person or, if the person is unable to write, the person's mark or the person's name written by some person at the person's request and in the person's presence." A stamped signature does not satisfy the § 805.02(l)(a) "handwritten signature" requirement.

III. Was Defect Properly Corrected

¶ 14. Wisconsin Stat. § 802.05(l)(a) permits an attorney to correct the signature defect "promptly after the omission is called to the attention of the pleader or movant." In this case, the defect was not properly corrected under § 802.05(l)(a) because it was not "promptly" corrected. Phillips and Gunville notified Novak's counsel of the deficiency in their answers to the complaint, but it was not corrected until almost a year later. Although Novak argues that Phillips and Gunville only challenged the signature on the summons, the summons and complaint had the same rubber-stamped signature. We conclude that their answers notified Novak of both the summons' and complaint's deficiency. Novak makes no argument why a one-year delay should be considered prompt, and we conclude that it is not.

IV. Fundamental or Technical Defect

¶ 15. Next, we examine if the defect is technical or fundamental. Novak contends that it is a technical defect, while Phillips and Gunville contend that it is fundamental. We conclude that the failure to personally sign the summons and complaint was a technical defect.

¶ 16. Defects in a summons or complaint are either technical or fundamental. "[W]here the defect is technical, the court has personal jurisdiction only if the complainant can show the defendant was not prejudiced, and, where the defect is fundamental, no personal jurisdiction attaches regardless of prejudice or lack thereof." Gaddis v. La Crosse Prods., 198 Wis. 2d 396, 401-02, 542 N.W.2d 454 (1996). Novak bears the burden of showing that the defect was technical and not prejudicial to the defendants. Id. at 402. Prejudice is only relevant if Novak has demonstrated that the error was technical and not fundamental. Id.

¶ 17. Resolution of this issue requires interpretation of Wis. Stat. §§ 801.09(3) and 802.05(l)(a), a question of law. See Gaddis, 198 Wis. 2d at 401. No party has cited a case directly dealing with whether rubber-stamped signatures on the summons and complaint are technical or fundamental defects under §§ 801.09(3) and 802.05(1)(a). In Dungan v. County of Pierce, 170 Wis. 2d 89, 95-96, 486 N.W.2d 579 (Ct. App. 1992), we held that a procedural error involving WlS. Stat. § 801.02 was fundamental and that errors in content or form are technical. Dungan, 170 Wis. 2d at 96. Whether the defect is technical or fundamental is resolved by analyzing the purposes of the statute and the type of action involved. Jadair, Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 208, 562 N.W.2d 401 (1997). If the purpose of the statutory rule is fulfilled, then we consider the defect to be technical and not fundamental. Id.

¶ 18. Dungan observed that service of an unauthenticated summons and complaint on a defendant before filing it with the trial court was a fundamental error. Id. at 95. It is also fundamental error when a plaintiff timely serves an authenticated summons and complaint on a defendant, but that defendant is not named in the summons, or when the service is not accomplished within the statutorily prescribed time after filing. American Family Mut. Ins. Co. v. Royal Ins. Co., 167 Wis. 2d 524, 533-34, 481 N.W.2d 629 (1992). Wisconsin Stat. § 801.02(1) requires a plaintiff to name the defendants in both the summons and complaint and to serve an authenticated summons and complaint on a defendant within sixty days of filing them with the court.

¶ 19. Dungan and Gaddis provide examples of technical defects. In Dungan, the plaintiff signed the summons as a pro se party, but designated that the answer be sent to his attorney. Id. at 94. The court concluded that this error was technical because it did not frustrate the purpose behind the Wis. Stat. § 801.02 requirements. Id. at 98. A summons failing to direct the defendant to answer within twenty days was also a technical defect. Id. at 96. In Gaddis, the court held that failure to sign the summons was a technical defect where all other procedural requirements were met, including an original handwritten signature on the complaint. Id. at 407. These failures to meet WlS. Stat. §§801.09 and 809.095 requirements were held to be errors in content and form. See Gaddis, 198 Wis. 2d at 407.

¶20. The trial court and defendants relied on McMillan-Warner Mut. Ins. Co. v. Kauffman, 159 Wis. 2d 588, 465 N.W.2d 201 (Ct. App. 1990). In McMillan, the plaintiff failed to timely serve the defendants with a signed summons and complaint. Id. at 590; see also Gaddis, 198 Wis. 2d at 405. McMillan concluded that the court acquired subject matter jurisdiction or competency to act when a properly subscribed summons and complaint were filed with the court. Id. at 594. The court determined that a plaintiffs failure to serve a defendant in accordance with WlS. Stat. § 801.02(1) was fatal to the claim. Id. It further reasoned that it had not acquired personal jurisdiction over the defendants before the statute of limitations expired, and the defendants were entitled to the statutory extinction of the cause. Id.

¶ 21. Novak distinguishes this case from McMillan in several ways. First, she argues that McMillan applies a former version of WlS. Stat. § 802.05(l)(a) that did not allow for a missing or inadequate signature to be cured. Second, Novak contends that the McMillan analysis has been replaced by Gaddis and Burnett v. Hill, 207 Wis. 2d 110, 557 N.W.2d 800 (1997).

¶ 22. Novak is correct that McMillan applied an earlier version of WlS. STAT. § 802.05(l)(a), which did not give a party an opportunity to correct a signature defect. See 1987 Wis. Act 256. Gunville acknowledges that § 802.05(l)(a) has been amended since McMillan to provide the opportunity to correct the failure to sign. Gunville contends that the amendment does not help Novak because she never commenced an action, so § 802.05 was not available to her. Both defendants contend that Gaddis approved the holding in McMillan. We disagree.

¶ 23. Gaddis does not cite McMillan with approval or disapproval, but rather distinguishes it factually. Gaddis, 198 Wis. 2d at 405. Further, Gaddis does not note or discuss the significance of the amendment to WlS. Stat. § 802.05(l)(a) in light of McMillan. We see the addition of the defect-correction language in § 802.05(l)(a) as the legislature's response to the McMillan holding that "commencement requires a properly subscribed summons and complaint," as Novak implicitly argues.

¶ 24. Here, neither defendant argues that Novak's suit was not well founded, properly investigated, or otherwise fails to meet the purposes of Wis. Stat. § 802.05(l)(a), except to note that failure to hand-write a signature independently signifies a failure to meet these statutory requirements. They also do not contend that the summons failed to notify them of the action against them. The existence of § 802.05(l)(a) demonstrates that the failure to properly sign the summons and complaint is a technical defect. If it was fundamental, a plaintiff would not have the opportunity to avail himself or herself of this defect-correcting provision. That § 802.05(l)(a) is available also belies the defendants' and the trial court's position that under McMillan, no action was commenced because commencement requires a properly subscribed summons and complaint.

¶ 25. As indicated, Wis. Stat. § 801.02 sets forth what is necessary to commence an action. A defect in commencing is addressed by a Wis. Stat. § 802.06 motion. The court could not consider such a motion if the defendants are correct that a defective signature means that no action was ever commenced. This position would render WlS. Stat. § 802.05(l)(a) superfluous as to the summons and complaint because a party could never use it to correct the deficiency. We reject this position. See State ex rel. Reimann v. Circuit Court, 214 Wis. 2d 605, 619, 571 N.W.2d 385 (1997) (construction of a statute that renders part of it meaningless must be avoided since courts are obligated to avoid construction that renders portion of statute superfluous). The defect in this case is technical.

V. Prejudice

¶ 26. Because we conclude that the defect is technical, we must consider whether it prejudiced the defendants. As stated above, neither defendant argues that the complaint was not well founded or properly investigated or that the summons failed to notify them of the action. In fact, because both defendants argued that the defect was fundamental, neither discussed prejudice.

¶ 27. Although we consider this a technical defect because it is one that may be corrected, indeed, without leave of the court if done within six months, Wis. Stat. § 802.09(1), we nevertheless conclude that it was prejudicial. The statutes require a handwritten signature as a certification under Wis. Stat. § 802.05(l)(a). If it is not initially done properly, the defect must be corrected, or else the certification statute and the protection it was intended to afford is rendered meaningless. In order to successfully correct the defect it must done "promptly." When it is not corrected under the statutory mandate, there is no certification and thus the prejudice.

¶ 28. Although Novak cites Gaddis to support her contention that the defect in this case is nonprejudicial error, the defendants in that case conceded that they were not prejudiced, so the court did not reach the issue. See id. at 407. In Gaddis, the court stated that "where the defect is technical, the court has personal jurisdiction only if the complainant can show the defendant was not prejudiced ...." Id. at 401-02. Therefore, where a technical defect has prejudiced the defendants, the court does not have personal jurisdiction over the defendants and has discretion to dismiss the corn-plaint. See id.; Canadian Pacific Ltd. v. Omark-Prentice Hydraulics, 86 Wis. 2d 369, 372, 272 N.W.2d 407 (Ct. App. 1978). However, Novak moved to amend the complaint. We address that issue next.

VI. Amending the Complaint

¶ 29. Novak challenges the trial court's decision to deny her request for leave to amend the summons and complaint. The trial court decided it could not consider Novak's motion to amend the complaint because the summons and complaint were fundamentally defective and the court therefore lacked competence to act. We reject this conclusion.

¶ 30. The defendants cite McMillan and Jadair to support the proposition that amendment is improper in this case because the court lacks subject matter jurisdiction. While McMillan concluded that when the statute of limitation was at issue, Wis. Stat. § 801.02 defects denied the court subject matter jurisdiction, see id. at 593-94, cases occurring later applied a different analysis. See Gaddis, 198 Wis. 2d at 401-02. Additionally, while Jadair concluded that it lacked jurisdiction and that amendment was improper, it can be distinguished on several grounds.

¶ 31. Beginning with American Family, the summons and complaint defect analysis focuses on whether the court has personal jurisdiction over the defendant or defendants, and not whether the court has subject matter jurisdiction to make rulings on the issue. Id. at 527. The defendant in Honeycrest Farms v. Brave Harvestore Systems, 200 Wis. 2d 256, 261, 546 N.W.2d 192 (Ct. App. 1996), argued, like the defendants in this action, that failure to serve a statutorily proper summons and complaint deprives the court of subject matter jurisdiction, citing Hester v. Williams, 117 Wis. 2d 634, 345 N.W.2d 426 (1984). Honeycrest rejected that contention, noting that both state and federal courts have construed these defects to deny the court personal jurisdiction over the defendants, but not to divest the court of subject matter jurisdiction. Id. at 262-63 (citing American Family, 167 Wis. 2d at 533-34; Pusey v. Dallas Corp., 938 F.2d 498, 501 (4th Cir. 1991); Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990)).

¶ 32. If the court was without jurisdiction to hear motions for dismissal or amendment, the statutes providing for these procedures would be meaningless. See Wis. Stat. § 802.06(2)(b) (motions challenging the complaint on any grounds listed in § 802.06(2)(a) including personal jurisdiction, subject matter jurisdiction, and insufficiency of summons or process) and § 802.09 (amendment); Reimann, 214 Wis. 2d at 619. Jadair echoed this sentiment, noting that failure to comply with rules other than the timely filing of a notice of appeal, did not affect the court's jurisdiction over the appeal and would permit the court to rule on motions for dismissal, summary reversal, striking of a paper, or the imposition of penalties or costs. Id. at 212 (citing Wis. Stat. Rule 809.83(2)). Because of the summons' and complaint's prejudicial technical defect in this case, the court failed to acquire personal jurisdiction over the defendants. See Gaddis, 198 Wis. 2d at 401-02. However, the court has not lost subject matter jurisdiction over the case.

¶ 33. We conclude that the trial court has subject matter jurisdiction to determine whether justice required the court to allow Novak to file an amended summons and complaint. Wisconsin Stat. § 802.09(1) provides that a court shall freely grant a request to amend the pleadings "at any stage in the action when justice so requires." A motion to permit an amendment is left to the court's discretion. Grothe v. Valley Coatings, 2000 WI App 240, ¶ 12, 239 Wis. 2d 406, 620 N.W.2d 463. Although Jadair supports denying a motion to amend a notice of appeal when the defect is fundamental, such as the unauthorized practice of law, id. at 211-12, we have concluded that the defect in this case is technical. If, as it did here, the trial court applies an erroneous view of the law, it improperly exercises discretion. See Grothe, 2000 WI App at ¶ 12. The case is therefore remanded for the court to determine whether in the proper exercise of discretion Novak's alternative form of relief should be granted.

By the Court. — Order affirmed in part; reversed in part and cause remanded with directions. No costs on appeal.

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

      No one argues that Wis. Stat. § 802.05(l)(c) applies to this case. This subparagraph allows a duplicate signature to satisfy the signature requirement "if a handwritten signature appears on the original document and the signing party or his or her attorney retains the original document." Wis. Stat. § 802.05(l)(c).

       Novak contends that we should interpret "subscribed" to mean "to give consent to (something written); to bind oneself to by writing one's name beneath; as, parties subscribe a covenant or contract; a man subscribes a bond or articles of agreement [or] to support; to consent to; to favor; to sanction," quoting Webster's New 20TH Century Dictionary (2d ed.).

       Novak also argues that Phillips has waived his right to challenge the summons and complaint because he failed to raise the defense in his initial motion to strike. However, his motion was brought under Wis. Stat. § 802.06(6), while the subsequent motion to dismiss was brought under Wis. Stat. §§ 801.02(1) and 802.05(l)(a). He contends that § 802.06(7), which requires a party to consolidate defenses pled under § 802.06, does not bar a motion under §§ 801.02(1) and 802.05(1)(a). Novak does not reply to this argument. We therefore deem it conceded. See Charolais Breeding Planches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979).

       We recognize that Gaddis v. La Crosse Prods., 198 Wis. 2d 396, 407, 542 N.W.2d 454 (1996), declined to make a bright-line rule that all defects under Wis. Stat. § 801.09 are technical.

        Burnett v. Hill, 207 Wis. 2d 110, 557 N.W.2d 800 (1997), analyzed whether a defect in service by publication deprived the court of personal jurisdiction. It did not interpret Wis. Stat. § 802.05(l)(a) and does not assist our interpretation of that section as amended. Novak also argues that that the plaintiff in McMillan-Warner Mut. Ins. Co. v. Kauffman, 159 Wis. 2d 588, 465 N.W.2d 201 (Ct. App. 1990), did not sign the second summons and complaint, nor did it have leave to file a second amended complaint. The plaintiff did not timely serve the original summons and complaint and did not claim that it had properly served a first amended summons and complaint. By contrast, here the defendants contest Novak's original summons and complaint and Novak's counsel stamped his signature and provided an affidavit that the purposes of § 802.05(l)(a) were intended to be satisfied by the stamped signature. Because we resolve the issue on other grounds, we need not address these arguments. See State v. Blalock, 150 Wis. 2d 688, 702, 442 N.W.2d 514 (Ct. App. 1989).

         Jadair, Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 208, 562 N.W.2d 401 (1997), can further be distinguished because it analyzed Wis. Stat. Rules 809.10(1)(b) and 809.83 to interpret its jurisdiction. These rules apply specifically to appeals and are not at issue in this case.


author: FINE, J.

text:
    In the Matter of the Guardianship and Protective Placement of Muriel K., alleged incompetent: Jeffrey Knight and Norris Knight, Appellants, v. Milwaukee County and Muriel K., Respondents.
    Court of Appeals

      No. 00-0929.

      Submitted on briefs May 1, 2001.

    Decided May 30, 2001.

    2001 WI App 147
    (Also reported in 633 N.W.2d 222.)

      On behalf of the appellants, the cause was submitted on the briefs of Patricia M. Cavey of Tammi, Cohn & Cavey, Milwaukee.
    On behalf of the respondent, Milwaukee County, the cause was submitted on the brief of Mary Ellen Poulos, principal assistant corporation counsel of Milwaukee.
    On behalf of the respondent-guardian, Steven C. Underwood, the cause was submitted on the brief of David W. Runke of Michael Best & Friedrich, LLP, Milwaukee.
    On behalf of Muriel K's adversary counsel, the cause was submitted on the brief of Robert B. Peregrine of Peregrine & Roth, S.C., Milwaukee and guardian ad litem, Pamela D. Crawford, Franklin.
    Before Wedemeyer, P.J., Fine and Schudson, JJ.

      Petition to review granted.

   FINE, J.

¶ 1. Jeffrey and Norris Knight appeal from orders entered by the trial court appointing a guardian of both the estate and the person of Muriel K, and directing her protective placement in an unlocked unit of a nursing home. The Knights (Jeffrey is Norris's son) are not related to Muriel K. Rather, they had previously been designated by Muriel K. as her power-of-attorney agents — for financial matters (Jeffrey Knight) and for health-care matters (both Knights). The following from the Knights' notice of appeal explains its basis and circumscribes its scope:

Jeffrey Knight and Norris Knight, as interested persons, as petitioners to restore Muriel K's legal rights and as the persons designated by . . . Muriel K. to be her power of attorney agents ... appeal.. . from the final order . . . ordering guardianship against Muriel K. and ordering her to be protectively placed to a nursing home and the order . . . awarding costs and fees against Muriel K.

For the reasons explained below, we conclude that the Knights may not appeal from the orders. Accordingly, we dismiss the appeal.

I.

¶ 2. In early November of 1999, Chris Krizek, a case manager for the Milwaukee County Adult Services Division, filed a petition with the circuit court alleging that three days earlier she had checked on Muriel K. at Muriel K.'s home after the Division received what the petition describes as an "elder abuse referral" and found her to be "unresponsive" to either "verbal or physical stimuli." The petition related that Krizek returned the next day with a psychologist, and that they found Muriel K. "sitting up in a chair but was unable to keep her eyes open." The petition further alleged that on this second visit:

[Muriel K.] could say her name after several promptings, did not know where she was, and fell asleep. When asked by [the psychologist] why they had not sought medical intervention and taken her to the hospital, the response of the Knights was that they thought it was just her age. [Krizek] immediately summoned paramedics, who took her to Froedtert [hospital], where she remains.

The petition also alleged:

As recently as this past June [Muriel K.] was reported in good condition by her relatives. Then her longtime groundskeeper, Jeff Knight, began to take over her affairs without consulting the family members. Shortly thereafter his mother and father, Jeanne and Norris Knight [address deleted] began to assume de facto decision-making power for [Muriel K.].

In June of 1999, Muriel K. executed a Durable Power of Attorney under Wis. Stat. § 243.07 granting Jeffrey Knight the power, among other things:

To do and perform all and every act, deed, matter, and thing whatsoever in and about my estate, property and affairs as fully and effectually to all intents and purposes as I might or could do in my own proper person, if personally present, the specifically enumerated powers described in this power of attorney being in aid and exemplification of the full, complete, and general power granted and not in limitation or definition.

The document expressly provided that the person granted the durable power of attorney "shall not exercise this power in favor of that person, that person's estate or creditors, or the creditors of that person's estate. It indicated that the powers granted by it "shall not be affected by my subsequent disability or incapacity." (Underlining omitted.) This latter language made the document by statute the grant of a "durable" power of attorney. Wis. Stat. § 243.07(1).

¶ 3. Although a durable power of attorney under Wis. Stat. § 243.07 survives the incapacity of the principal, it may, of course, be revoked by either the principal if he or she is not incapacitated, or a court-appointed fiduciary for the principal. Wis. Stat. § 243.07(3)(a) (court appointed fiduciary "has the same power to revoke or amend the [durable] power of attorney that the principal would have had if the principal were not disabled or incapacitated."); see also Wis. Stat. § 243.07(5) (recognizing "express revocation" by principal). Thus, the person given a durable power of attorney on behalf of a principal is subject to direction of a guardian of the principal's estate who is appointed by "a court of the principal's domicile," and, "[ujnless the court finds that the durable power of attorney should remain in effect, the fiduciary [that is, in this context, the guardian of the estate] has the same power to revoke or amend the power of attorney that the principal would have had if the principal were not disabled or incapacitated." Wis. Stat. § 243.07(3)(a). The word "incapacity" is defined by the statute as "the inability to receive and evaluate information effectively or to communicate decisions to such an extent that the individual lacks the capacity to manage his or her decisions." § 243.07(l)(b).

¶ 4. In late September of 1999, Muriel K. granted to both Norris and Jeffrey Knight a power of attorney for health care, under Wis. Stat. ch. 155. A power of attorney for health care is subject to invalidation if the person granting the power becomes incompetent and the court appoints a guardian for that person. WISCONSIN Stat. § 155.60(1) & (2) provide:

(1) Nothing in this chapter prohibits an individual from petitioning a court under ch. 880 for a determination of incompetency and for appointment of a guardian for an individual who is a principal under this chapter.
(2) If a court under s. 880.33 determines that an individual who is a principal is incompetent or makes a finding of limited incompetency under s. 880.33(3) and appoints a guardian for the individual, the power of attorney for health care executed under this chapter by the principal is revoked and the power of attorney for health care instrument is invalid, unless the court finds that the power of attorney for health care and power of attorney for health care instrument should remain in effect. If the court makes this finding, the guardian for the individual may not make health care decisions for the ward that may be made by the health care agent, unless the guardian is the health care agent.

¶ 5. Krizek's petition for guardianship alleged that Muriel K. lived in a home "believed to be valued at in excess of $175,000," and that her "personal property, in the form of bank accounts and brokerage accounts, is valued at $1.5 million." It also alleged that following execution of powers of attorney, the Knights "attempted thereafter to transfer $100,000 from one of [Muriel K.]'s brokerage accounts at [company name omitted] brokerage to an account under the control of the Knights acting under the financial [power of attorney]."

¶ 6. Pamela D. Crawford, an attorney admitted to practice in Wisconsin, was appointed by the circuit court to be Muriel K.'s guardian ad litem. Robert B. Peregrine, also an attorney admitted to practice in Wisconsin, was appointed to represent Muriel K. as her "adversary" or, differently phrased, her "advocacy" counsel. The circuit court also appointed temporary guardians of Muriel K.'s person and estate, and "suspended all prior powers of attorney executed by [Muriel K] for any purpose."

¶ 7. The Knights, seeing the petition for guardianship and the ex parte orders appointing the temporary guardians, the guardian ad litem, and counsel for Muriel K, as circumventing their authority under the powers of attorney previously granted to them by Muriel K., filed an appearance as, in their words, "interested persons," and sought, among other relief, the restoration of their respective authorities under the powers of attorney. Additionally, the lawyer who had drafted the powers of attorney executed by Muriel K. filed an affidavit with the circuit court requesting that the court "advise" him "as to his role" in connection with the ongoing proceedings. The lawyer's affidavit was filed on February 10, 2000; on February 15, the circuit court appointed Peregrine as Muriel K's lawyer for purposes of the guardianship proceedings.

¶ 8. On March 6, 2000, the trial court held an evidentiary hearing on Krizek's petition. Although it did not permit the Knights to participate in the examination of the witness called by Milwaukee County in support of the petition, the trial court did authorize them to have a physician examine Muriel K. and their lawyer to call that physician to testify. (See footnote 3 of this opinion in connection with the trial court's limitation of the Knights' participation in the hearing.) The trial court excused Muriel K's attendance at the hearing, accepting the written and oral report by the guardian ad litem, who determined after speaking with her that Muriel K. was "confused and disoriented and would be distressed by the proceedings." See Wis. Stat. § 880.08(1) ("The court shall cause the proposed incompetent, if able to attend, to be produced at the hearing. The proposed incompetent is presumed able to attend unless, after a personal interview, the guardian ad litem certifies in writing to the court the specific reasons why the person is unable to attend.").

¶ 9. Other than the physician who examined Muriel K. on the Knights' behalf, the only person to testify at the hearing was Krizek. She told the trial court that when she went to check up on Muriel K. in early November, 1999, Muriel K. was "basically comatose," "extremely thin," and that she "appeared dehydrated." A person whom Krizek described as Muriel K's "caregiver" was unable to tell Krizek when Muriel K. had last eaten or drank. Krizek returned the next day with a psychologist. Again, according to Krizek, Muriel K. was in extremely poor health. Krizek testified that she summoned paramedics, who then removed Muriel K. to the hospital.

¶ 10. The physician who examined Muriel K. on behalf of the Knights testified that when he saw Muriel K. on Friday, March 3, 2000, (three days before the hearing date of March 6,2000), she was "alert," "had no problems understanding the questions" he put to her, and "responded very appropriately." He also indicated that Muriel K. had a "mild cognitive impairment" and that her "largest area of deficit is in visual spatial functioning." Although the psychologist who had examined Muriel K. on behalf of Milwaukee County did not testify, Muriel K.'s guardian ad litem and advocacy counsel stipulated to the receipt of the psychologist's report and to its consideration by the trial court. The report reflects an evaluation date of December 10, 1999, and indicated that, in the psychologist's view, Muriel K. "exhibited a marginal contact with reality, primarily compromised by the dementia," and that "she does not have any level of reasoning, judgment, or mental capacity to provide adequate direction for the management of her financial affairs." He concluded that Muriel K. was "severely incapacitated cognitively," "requires 24 hour medical supervision due to her severe needs," and "is unable to direct her affairs either with regard to personal matters, health care, or her estate."

¶ 11. After hearing Krizek's testimony, the testimony" of the physician who examined Muriel K. on behalf of the Knights, considering the psychologist's report, and after hearing extensive argument from the lawyers and the recommendations by the guardian ad litem, the trial court ordered that the powers of attorney granted to the Knights be revoked, and appointed guardians of Muriel K's person and estate. Additionally, it awarded to the advocacy counsel and to the guardian ad litem their fees from Muriel K's estate. As noted, the Knights are attempting to appeal from these orders.

II.

¶ 12. The issue of whether the Knights have standing to bring and maintain this appeal was initially decided by this district's motions judge in response to a motion brought by Muriel K's advocacy counsel and by her guardian ad litem to dismiss the appeal. The motions judge denied the motion. Before getting to the merits of whether the Knights have standing to maintain this appeal, we discuss the effect of the motions judge's denial of the motion brought by Muriel K.'s guardian ad litem and advocacy counsel to dismiss this appeal.

¶ 13. A. Under this court's internal operating procedures, motions are considered and decided by the motions judge — but the motions judge does not have the authority to prevent the panel from considering the merits of an appeal. Thus, Rule VI(3)(c) of the Internal Operating Procedures provides, as material here:

The motions judge may act on all motions, except those that reach the merits or preclude the merits from being reached, which can only be acted on by the panel. The motions judge may direct that any motion be acted on by the panel. The panel considers motions that reach the merits, that preclude the merits from being reached, or that have been referred by the motions judge.

Wis. Ct. App. IOP VI(3)(c) (October 1, 2000). As noted, the motions judge issued an order denying the motion to dismiss the appeal brought by the Knights. The order recited, as material here:

Peregrine and Crawford move this court to dismiss the appeal. The motion to dismiss is confined to arguing than an appeal on behalf of an incompetent person may be taken only by the guardian of the incompetent's estate or by the guardian ad litem under Wis. STAT. § 879.27(4) (1997-98). If Peregrine's and Crawford's contention is correct, Jeffrey Knight and Norris Knight would lack standing to appeal and this court would, therefore, lack jurisdiction over their appeal.

After discussing the effect of Wis. Stat. § 879.27(1), which provides that "[a]ny person aggrieved by any appealable order or judgment of the court assigned to exercise probate jurisdiction may appeal or take a writ of error therefrom to the court of appeals," the motions judge: 1) opined that the Knights had "standing to appeal the circuit court's order and that, therefore, this court has jurisdiction of the appeal,"; and 2) "decline[d] to address the impact of Wis. Stat. § 879.27(4), at this preliminary stage of the appeal."

¶ 14. The motions judge's order was, per force, preliminary because a decision agreeing with the positions of Muriel K.'s advocacy counsel and of her guardian ad litem would have, as noted, required consideration by a three-judge panel of this court. Moreover, a three-judge panel of this court assigned to hear an appeal is not bound by a decision of the motions judge, any more than a three-judge panel deciding an appeal is foreclosed from, either on its own motion or in response to a party's suggestion, reconsidering that decision. See Wis. Ct. App. IOP VI(6) (October 1, 2000). We now turn to the merits of the contention that the Knights lack standing to bring and maintain this appeal.

¶ 15. B. As we have seen, appeals of probate-court matters as material here are governed by WlS. Stat. § 879.27(1) & (4). Subsection (1) provides: "Appeal is to the court of appeals. Any person aggrieved by any appealable order or judgment of the court assigned to exercise probate jurisdiction may appeal or take a writ of error therefrom to the court of appeals." Subsection (4), however, restricts subsection (l)'s seeming broad grant of standing in two types of cases heard by the probate court — those involving minors and incompetents: "WHO MAY APPEAL ON BEHALF OF minor OR incompetent. In all cases the appeal on behalf of any minor or incompetent person may be taken and prosecuted by the guardian of the minor's or incompetent's estate or by a guardian ad litem."

¶ 16. Whether the Knights have standing to maintain this appeal turns on the meaning of Wis. Stat. § 879.27(1) & (4). Interpretation of statutes presents legal issues that we resolve de novo. Coston v. Joseph P., 222 Wis. 2d 1, 10, 586 N.W.2d 52, 56 (Ct. App. 1998). Our goal is, of course, "to effectuate the intent of the legislature." Id., 222 Wis. 2d at 11, 586 N.W.2d at 57.

¶ 17. Probate-court jurisdiction in Wisconsin encompasses many areas of the law. One area, of course, concerns the transfer of property at death — by will, intestate succession, or otherwise. See WlS. STAT. chs. 851-878. Probate courts are also invested with authority to decide petitions for guardianship. See WlS. Stat. ch. 880. The general procedure for matters heard by the probate court is set out in Wis. Stat. ch. 879. Thus, the general rule that any person "aggrieved" by an otherwise appealable order of the probate court may appeal. Wis. Stat. § 879.27(1). As we have seen, however, this general rule is restricted by Wis. Stat. § 879.27(4), which applies only to one area of the probate-court jurisdiction — that involving minors or incompetents, both of whom are under a disability and need a surrogate to prosecute the appeal on their behalf.

¶ 18. The restrictive nature of the grants in Wis. Stat. § 879.27(1) & (4) of the right to appeal on behalf of a person adjudged to be incompetent is illumined by our caselaw in two major respects. First, who is an "aggrieved" person for the purpose of taking an appeal from a probate court order affecting an incompetent person. Second, who may represent an incompetent person on an appeal from an order of the probate court. We discuss these matters in turn.

¶ 19. 1. Only a person whose rights are directly affected by a probate court order in connection with guardianship matters is "aggrieved" by that order. Thus, Sanborn v. Carpenter, 140 Wis. 572, 123 N.W. 144 (1909), dismissed the appeal of siblings who had petitioned unsuccessfully for an order declaring their sister to be incompetent and appointing a guardian to conserve her property. Holding that they were not "aggrieved" from the order denying their petition, and thus could not appeal under a statute that permitted appeals by any "person aggrieved" from the order, Sanborn stated the general rule:

While section 3976, Stats. (1898), permits any relative or mere friend to awaken the activities of the county court in the first instance [to seek a declaration of incompetency], the right to appeal is limited to certain specified official persons and to "any person aggrieved" by the determination which that court may make. Sec. 4031, Stats. (1898). This phrase of the statute has from the earliest days been construed to the effect that no one can be aggrieved, in the sense of the statute, unless the determination affects adversely his legal rights; that mere affront to desire or sentimental interest is insufficient.

Id., 140 Wis. at 574, 123 N.W. at 144. Similarly, as a recipient of the grant of a durable power of attorney, Jeffrey Knight has no personal legal rights in the grant — the power to create, and once created to undo, rests in the principal while that principal is competent. Moreover, as we have seen, if the principal is no longer competent, the guardian of the principal's estate may also revoke a durable power of attorney. Wis. STAT. § 243.07(3)(a). By the same token, the power of attorney for health care may be revoked by the principal while he or she is competent, and is revoked by a court's determination that the person granting the power is incompetent and the court's appointment of a guardian for that person, unless the court lets it remain in effect. Wis. Stat. § 155.60(2). Additionally, the exercise of both the durable power of attorney and the health-care power of attorney is for the benefit of the principal and not those who are appointed to exercise those powers on the principal's behalf. In fact, the Knights recognized that they were asserting no personal rights by their seeking to participate in the guardianship proceedings when their attorney told the trial court: "We are not here for the rights of the Knights or any of their personal interest." Under Sanborn, they are thus not "aggrieved," and do not fall within the general grant of the right to appeal in Wis. Stat. § 879.27(1).

¶ 20. 2. There are circumstances where minors would be "aggrieved" by an order of the probate court that affects them. Incompetents might also be "aggrieved" by a probate-court order. But both minors and incompetents are under a disability and their rights have to be asserted by others. It is here where Wis. Stat. § 879.27(4) kicks in; the section grants the right to pursue an appeal on behalf of a minor or an incompetent to two classes of persons: the guardian of the estate of the minor or incompetent, and the guardian ad litem. This right to appeal on their behalf is exclusive. In re McLaughlin, 101 Wis. 672, 673, 78 N.W. 144 (1899).

¶ 21. McLaughlin concerned an uncle's petition to remove the mother of minor children as their guardian (he was the brother of the children's father) because of alleged misconduct and waste. Id., 101 Wis. at 673-674, 78 N.W. at 144. When the trial court denied his petition, he sought to appeal on the children's behalf. Ibid. The relevant statute governing who could represent minors in an appeal on their behalf was similar to current Wis. Stat. § 879.27(4) and provided that "the appeal of any minor may be taken in and prosecuted in the name of the general guardian of such minor or by a guardian ad litem appointed for that purpose." Ibid. McLaughlin explained why the legislature vested exclusive rights in either the general guardian or the guardian ad litem to appeal on the behalf of minors, and this analysis is as true today as it was then:

No reason appears to us why this court should enlarge or diminish this statute. It must be deemed exclusive. While the duty is not upon this court to find reasons for plain legislation, we may remark that it is of primary importance that the proceedings of county courts, with the important property interests placed in their care, should not be interrupted by unwarranted appeals, nor the rights of minors therein jeopardized, and their estates burdened with expense, at the discretion of people having no authority to represent them, and who in many cases may be antagonistic to their interests. Compliance with the statute is easy, and no doubt can be entertained that at any time county courts will certify to the qualifications of some proper person to care for the minors' interests, by conferring upon him an appointment as guardian ad litem when the occasion demands. Without such certification he is a mere volunteer, and the presumption is adverse to, rather than in favor of, his suitability to care for the minors' interests.

Id., 101 Wis. at 674, 78 N.W. at 144-145. Although the Knights hone in on the word "may," (which is in current § 879.27(4) and was in the statute applied by McLaughlin) and argue that it is permissive and not a restrictive grant of the right to appeal, this reading ignores the grammatical context: by saying that certain designated persons selected from a more general population "may" do something necessarily denotes that the others may not. Thus, the sentence "Every student wearing red may stand" is a directive that permits only those students wearing red to stand, and not, as the Knights would apparently have it, general licénse to all the students to stand, including those wearing red.

¶ 22. As we have seen in footnote 3, and in our Coston decision, WlS. Stat. ch. 880 grants to "interested persons" certain but limited roles in guardianship proceedings; the right to appeal either to assert their own interests or on behalf of a minor or incompetent, however, is not one. Had the legislature wanted to give either "interested persons" or the recipients of powers of attorney the right to appeal from probate-court orders or judgments "on behalf' of either minors or incompetents it could have done so quite easily. See State v. Frankwick, 229 Wis. 2d 406, 412, 599 N.W.2d 893, 896 (Ct. App. 1999) (legislature presumed to know existing law). It did not do so. Moreover, Wis. Stat. § 55.06(18), upon which the Knights also rely as authority for their appeal, does not apply here. Section 55.06(18) provides: "An appeal may be taken to the court of appeals from a final judgment or final order under this section... by any petitioner or by the representative of the public." A "petitioner" under WlS. STAT. ch. 55 is one who seeks to have the court order protective placement for a person. See Wis. Stat. § 55.06(2) ("The department, an agency, a guardian, or any interested person may petition the circuit court to provide protective placement for an individual who [statute then lists criteria]."). Thus, if an "interested person" files a petition seeking an order for protective placement, that petitioner may appeal from the circuit court's final order or judgment in connection with that petition. Neither of the Knights is such a petitioner. Permitting someone to gain the right to appeal by the mere filing of a petition objecting to a guardianship would nullify the limitations on who may appeal found in Wis. Stat. § 879.27(1) & (4), and would have the limited exception found in § 55.06(18) swallow the rule.

¶ 23. For the foregoing reasons, the Knights do not have standing to pursue this appeal, either on their own behalf or on the behalf of Muriel K. Accordingly, the appeal is dismissed.

By the Court. — Appeal dismissed.

       The guardian ad litem is an attorney admitted to practice in Wisconsin whose obligation is to "be an advocate for the best interests of the proposed ward or alleged incompetent as to guardianship, protective placement and protective services." Wis. Stat. § 88.331(2) & (3).

       The alleged incompetent is also entitled to counsel. Wis. Stat. § 880.33(2). Counsel, whether denominated "adversary counsel" or "advocacy counsel," is duty bound to represent his or her client's wishes unless, of course, there is either a conflict with the precepts of professional ethics that govern our profession, see Rules of Professional Conduct for Attorneys, SCR ch. 20, or the lawyer "concludes that he or she cannot conscientiously advocate." Tamara L.P. v. County of Dane, 177 Wis. 2d 770, 782-783, 783 n.4, & 784, 503 N.W.2d 333, 337, 337 n.4, & 338 (Ct. App. 1993). Stated another way, the lawyer representing the alleged incompetent must represent what that person wants "zealously within the bounds of the law.” State ex rel. Memmel v. Mundy, 75 Wis. 2d 276, 283-284, 249 N.W.2d 573, 577 (1977).

       An "interested person" is defined by WlS. STAT. § 880.01(6) as, among others, "any adult relative or friend of a person to be protected under this subchapter." As we have previously recognized, "interested persons" have significant roles under WlS. Stat. ch. 880, including the filing of "a petition with the court requesting a restoration" of certain legal rights to those persons found to be suffering from "limited incompetency" (Wis. Stat. § 880.33(3)). Coston v. Joseph P., 222 Wis. 2d 1, 11-13, 11 n.7, 586 N.W.2d 52, 57 & 57 n.7 (Ct. App. 1998). "Neither the guardianship statutes nor the case law, however, provides interested persons with unlimited rights to participate in the hearing" in connection with incompetency issues under WlS. STAT. ch. 880. Id., 222 Wis. 2d at 12-13, 586 N.W.2d at 57-58. "No statute provides for interested persons to demand a trial, present evidence, or raise evidentiary objections in guardianship and protective placement hearings — whether contested or uncontested." Id., 222 Wis. 2d at 21, 586 N.W.2d 61 (trial court has discretion, however, "to allow interested persons to participate to the extent it would deem appropriate").

       The Knights cite to us the statement in Bryn v. Thompson, 21 Wis. 2d 24, 29, 123 N.W.2d 505, 508 (1963), that "In addition to a direct appeal of the initial order, any interested party at any c, time during the guardianship may petition for a rehearing seeking revocation of the guardian-ward status." (Emphasis added.) They argue that the italicized portion of the quotation is at odds with Sanborn v. Carpenter, 140 Wis. 572, 123 N.W. 144 (1909), and is therefore controlling. We disagree. The issue in Bryn was whether a personal representative of the estate of a deceased incompetent could collaterally challenge the guardianship. Bryn, 21 Wis. 2d at 27, 123 N.W.2d at 507. Bryn held that he could not. Id., 21 Wis. 2d at 29-30, 123 N.W.2d at 508. The italicized portion of the quote is in the discussion of potential other avenues of review of an alleged inappropriate guardianship. Bryn neither discussed nor analyzed the statutes authorizing appeal, and did not even cite Sanborn. Under these circumstance, the quoted statement is dictum, which is not binding on us. See State v. Koput, 142 Wis. 2d 370, 386 n.12, 418 N.W.2d 804, 811 n.12 (1988); Miller v. Mauston School Dist.,
        222 Wis. 2d 540, 554, 588 N.W.2d 305, 311 (Ct. App. 1998) ("If a statement is obiter dictum — that is, irrelevant to the rationale of the decision — it is not binding unless the statement is an administrative or supervisory direction, which we are bound to follow."). The statement in Sanborn, on the other hand, is essential to its holding and, therefore, is not dictum, and is binding on us.

       In their argument in opposition to the motion to dismiss, the Knights disparage both Sanborn and In re McLaughlin, 101 Wis. 672, 78 N.W. 144 (1899), as "two roughly 100 year old decisions." Our civilization and our nation is built on the paths explored by our ancestors, and, for example, the entire basis of judicial authority to review the constitutionality of legislative enactments rests on Marbury v. Madison, 1 Cranch 137 (1803), which is "roughly" two-hundred years old. To paraphrase Isaac Newton, if we see further it is because we stand on the shoulders of giants. (The phrase was apparently first used by him in a letter to Robert Hooke, more than three centuries ago, John Bartlett, Familiar Quotations 313 (15th ed. 1980), but was not original with him, Robert K. Merton, On the Shoulders of Giants (1965)).

       An "interested person" under Wis. STAT. ch. 55 is defined as: "[A]ny adult relative or friend of a person to be protected under this subchapter; or any official or representative of a public or private agency, corporation or association concerned with the person's welfare." Wis. Stat. § 55.01(4).

         Carla S. v. Frank B., 2001 WI App. 97, 242 Wis. 2d 605, 626 N.W.2d 330, held that an "interested person," see Wis. Stat. § 880.01(6), could appeal, but neither cited nor discussed WlS. STAT. § 879.27(4), which we apply here. Here, the Knights seek to appeal solely "on behalf' of Muriel K. Under these circumstances, § 879.27(4) controls, and the Knights lack standing.


author: WEDEMEYER, P.J. SCHUDSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Dalvell Richardson, Defendant-Appellant.

    Court of Appeals

      No. 00-2129-CR.

      Submitted on briefs April 3, 2001.

    Decided May 30, 2001.

    2001 WI App 152
    (Also reported in 632 N.W.2d 84.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Richard D. Martin, assistant state public defender of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and William H. Ramsey, assistant attorney general.
    Before Wedemeyer, P.J., Fine and Schudson, JJ.

      Petition to review denied.

   WEDEMEYER, P.J.

¶ 1. Dalvell Richardson appeals from a judgment entered after he pled guilty to one count of armed robbery as party to a crime. He also appeals from an order denying his postconviction motion, which sought resentencing for an alleged breach of a plea agreement and claimed ineffective assistance of trial counsel for failing to object to the breach. Because the sentencing court's findings of fact in denying the motion were not clearly erroneous and its conclusion of law that no breach of the plea agreement occurred was reasonably based, we affirm.

I. BACKGROUND

¶ 2. On October 16, 1998, Richardson and an accomplice, who is only partially identified in the record, committed an armed robbery in a home located at 2228 North 40th Street. At the time of the incident, several adults and four minor children were present in the home. Pursuant to a plea agreement, Richardson agreed to plead guilty to the charge. In turn, the State agreed not to recommend any specific sentence at the time of sentencing. The State affirmatively indicated that it would leave the length of incarceration entirely up to the court.

¶ 3. During the sentencing hearing, the State iterated its position. The trial court sentenced Richardson to thirty-five years in prison. Richardson moved for resentencing. The basis for the motion was that despite hairing committed itself to taking no position as to the length of incarceration, the State "repeatedly suggested that a very lengthy sentence was appropriate." There was no hearing on the motion. In a written opinion, the sentencing court denied the motion for resentencing. Richardson now appeals.

II. ANALYSIS

¶ 4. Richardson claims the prosecutor violated the terms of the plea agreement by making comments during the sentencing hearing that suggested to the court that a lengthy sentence was required. The trial court found that the prosecutor's comments did not constitute a breach of the plea agreement. We agree.

¶ 5. Whether a prosecutor violated the terms of a plea agreement will depend on the circumstances of every case. If there is a disputed question of fact as to whether the prosecutor violated the terms of the agreement, we shall give deference to the factual findings of the trial court unless they are clearly erroneous. State v. Wills, 193 Wis. 2d 273, 277, 533 N.W.2d 165 (1995). If there are no disputed facts, the question is one of law to be reviewed independently. Id. If, on the other hand, there is both a disputed question of fact and a question of whether the facts establish a breach, then we must first review the facts under the clearly erroneous standard of review and then determine as a matter of law independently whether the prosecutor violated the terms of the plea agreement. Id. at 277 — 78.

¶ 6. At the sentencing stage of a criminal proceeding, pertinent factors relating to the defendant's character and behavior pattern cannot be immunized by a plea agreement between the defendant and the state. Elias v. State, 93 Wis. 2d 278, 285, 286 N.W.2d 559 (1980). A plea agreement that does not allow the sentencing court to be apprised of relevant information is void as against public policy. State v. McQuay, 154 Wis. 2d 116, 125-26, 452 N.W.2d 377 (1990).

¶ 7. Although what transpired at the sentencing hearing is not in dispute, the inferences drawn from the oral presentation of both the State and defense are disputed. Thus, we are presented, as was the postcon-viction motion court, with a record ripe for finding facts and reaching a conclusion of law, even though no motion hearing occurred.

¶ 8. The plea agreement, as entered in the record, reads:

[DEFENSE COUNSEL]: ... My client is willing to enter into a plea, based upon the negotiations being that [the prosecutor] will not recommend any specific sentence at the time of sentencing.
THE COURT: [Prosecutor].
[PROSECUTOR]: To be specific, the State is walling to leave the length of the incarceration entirely up to the Court, will not make any specific numerical type of recommendation. It will just be incarceration and restitution and leaving all specifics to the Court.

¶ 9. Richardson argues that the following statements made by the prosecutor at the sentencing hearing constituted a breach of the plea agreement: "this could have been a multiple count situation," "this particular case is, if not the most serious case I've handled this year, it is certainly among the top two or three," "[t]his is one of the most serious non-fatal crimes that I have dealt with." Richardson contends these comments "constituted a forbidden 'end-run' around the agreement." We are not persuaded.

¶ 10. After reviewing the written arguments of both parties and the record itself, the sentencing court made the following findings of fact. At the time of sentencing, the contents of the criminal complaint and pre-sentence report could have justified a multi-count charge against Richardson. The court "gleaned this for itself." From its review of the record, the court knew the facts surrounding the offense and would have considered the totality of the facts "with or without the prosecutor's comment regarding the potential for a multiple count information." The court found that the State was not precluded by the agreement from setting forth its honest opinion of the nature of the offense. It found that the prosecutor's appraisal of the case was supported by a list of ten aggravating factors — most of which were already known to the court — and five mitigating factors. It further found that the prosecutor did not deviate from the terms of its plea agreement. The prosecutor did not make a specific recommendation, but left the amount of time to be served entirely up to the court.

¶ 11. Without full context, a review of the prosecutor's introductory sentencing remarks might very well lead one to conclude that the prosecutor was attempting an "end-run" around the intent of the plea agreement. This first blush reaction, however, is not warranted when we consider the remarks in their full context. A complete review of the sentencing transcript reveals that Richardson's defensive ploy was to divert attention to his unknown accomplice, and to deflect responsibility onto the accomplice as the mastermind because the accomplice knew the home was a drug house used by individuals with prior drug convictions and an easy mark. Viewed in this light, it is not unreasonable to conclude that the prosecutor's comments were intended only to keep the factors for sentencing in their proper perspective. When a party opens the door on a subject, he cannot complain if the opposing party offers evidence on the same subject to explain, counteract, or disprove the evidence. United State v. Touloumis, 771 F.2d 235, 241 (7th Cir. 1985).

¶ 12. Further, the court found that the plea agreement did not prohibit the prosecutor from "setting forth its honest opinion of the nature of the offense, i.e. that it was one of the most serious armed robberies it had dealt with." The plea agreement indicated the State would not make a specific recommendation. The State did not. The comments that Richardson refers to as attempting an "end-run" around the agreement, taken in context, provided the trial court with relevant information, which cannot be immunized by a plea agreement or bargained away. Elias, 93 Wis. 2d at 285; McQuay, 154 Wis. 2d at 125-26.

¶ 13. In summary, we conclude that the sentencing court's findings of fact in its written decision denying the postconviction motion are not clearly erroneous and provide a sufficient basis for its conclusion that no breach of the plea agreement occurred. Sequentially therefore, there was no instance of ineffective assistance of trial counsel.

By the Court. — Judgment and order affirmed.

SCHUDSON, J.

¶ 14. (dissenting). There's much more to this story.

¶ 15. The prosecutor advised the court that, under a proposed plea agreement, it was offering Richardson either of two options:

[T]he State . .. would either leave sentencing to the Court and not be specific as to length or... the State would recommend a range of time somewhere in the range of 20 to 30 years if Mr. Richardson wanted the State to be more specific. . . . [W]e're more than willing to take either of these two positions. . ..

Defense counsel, after conferring with Richardson, advised the court that Richardson was "willing to enter into a plea, based upon the negotiations being that [the prosecutor] will not recommend any specific sentence at the time of sentencing." The prosecutor then added:

To be specific, the State is willing to leave the length of the incarceration entirely up to the Court, will not make any specific numerical type of recommendation. It will just be incarceration and restitution and leaving all specifics to the Court.

Thus, Richardson refused a plea agreement that would have allowed the State to recommend a range of twenty to thirty years in prison, but accepted an agreement leaving, in the prosecutor's words, "the length of the incarceration entirely up to the Court."

¶ 16. At sentencing, however, the prosecutor emphasized, "[T]his particular case is, if not the most serious case I've handled this year,... certainly among the top two or three." He then added, "This is one of the most serious non-fatal crimes that I have dealt with."

¶ 17. Most significantly, as revealed in the post-conviction motion submissions, the prosecutor (who had handled the plea proceedings), in his letter to defense counsel denying that he had breached the plea agreement, maintained that the plea agreement "most certainly did not 'limit the prosecutor's ability to present arguments supporting a lengthy prison term,'" as defense counsel had alleged in his letter to another prosecutor (who was then handling the postconviction proceedings). Additionally, in that same letter to defense counsel, the prosecutor (who handled the plea proceedings) maintained that "[pjainting a vivid picture of just how awful a crime this was and how it related to the 'average robbery' was made even more necessary by the fact that Judge Gordon was relatively new to felony court and . . . had . . . handled relatively few, if any, of these types of cases."

¶ 18. The prosecutor's trial court declaration of the plea agreement cannot be reconciled with his post-conviction characterization of the agreement. The prosecutor initially represented that, under the agreement, the State would "leave the length of the incarceration entirely up to the Court." In his letter, however, the prosecutor claimed that the agreement "most certainly did not 'limit the prosecutor's ability to present arguments supporting a lengthy prison term.' " And, in his letter, the prosecutor candidly acknowledged what he perceived as the need, based on the judge's relative inexperience, to offer information that would help the judge understand that Richardson's crime was far more serious than the " 'average robbery.' " Unquestionably, such comments countered the agreement to "leave the length of the incarceration entirely up to the Court."

¶ 19. Unquestionably, such comments urged the judge to order a sentence at or near the maximum end of the statutory range. And actually, on this point, there really is little if any dispute. After all, the prosecutor, quite understandably (given his view that the agreement did not limit his ability to "present arguments supporting a lengthy prison term"), offered extensive comments to guide what he considered an inexperienced judge toward a lengthy period of incarceration

¶ 20. The majority suggests that Richardson opened the door to the prosecutor's remarks. See Majority at ¶ 11. The record, however, in two totally obvious ways, reveals that he did not.

¶ 21. First, the prosecutor's comments preceded those from defense counsel and Richardson. Clearly, therefore, Richardson had not opened any door.

¶ 22. Second, even if we could pretend that the prosecutor's comments came after those of defense counsel or Richardson, the prosecutor's remarks were unrelated to the "defensive ploy" the majority claims as the basis for the prosecutor's response. Without any basis in the record, the majority asserts that "Richardson's defensive ploy was to divert attention to his unknown accomplice, and to deflect responsibility...." Majority at ¶ 11. If that were so, the prosecutor perhaps could have offered information tightly tying Richardson to the crime, thus defeating the "defensive ploy." The prosecutor's remarks, however, do not even attempt to do that; they address the seriousness of the crime without regard to the relative culpability of Richardson and his accomplice.

¶ 23. "A criminal defendant has a constitutional right to the enforcement of a negotiated plea agreement .... '[0]nce the defendant has given up his bargaining chip by pleading guilty, due process requires that the defendant's expectations be fulfilled.' " State v. Smith, 207 Wis. 2d 258, 271, 558 N.W.2d 379 (1997) (citations omitted). "When a prosecutor does not make the negotiated sentencing recommendation, that conduct constitutes a breach of the plea agreement." Id. at 272.

¶ 24. In this case, admittedly, the record allows for several interpretations of the exact parameters of the plea agreement and the prosecutor's comments. With considerable effort, perhaps, one could wrestle the record to the mat and possibly pin this sentencing at the outer edge. But why do so? After all, the inconsistency between the prosecutor's initial and postconviction representations reflect, at the very least, even the prosecutor's differing interpretations of the plea agreement.

¶ 25. The integrity of the plea agreement/sentencing process is essential to justice — for both defendants and the State. Preserving that integrity requires re-sentencing where, as here, the record reveals, at the very least, the substantial likelihood of a breach. Accordingly, I respectfully dissent.

       In fact, the prosecutor's remarks, if anything, do the opposite of what the majority maintains. The prosecutor emphasized, as one of ten aggravating factors, that Richardson, instead of cooperating, had "chosen instead to protect his accomplice and refuse to name his accomplice."