author: CURLEY, J.

text:
    Robert Pasko, Scott Warren, Michael Wolfgram, Elizabeth Pridmore-Dahlke, Patrick LaBelle, Gertie Gilliam, Terese Ulickey, Henry Zimmerman, Anna Merhalski, Alfonso Salinas, Richard Thompson, Jean Docter, Charlene Guiliani, Harold Davis, David Granica, Audrey Warren, Mary Sikora, Linda Scholler, Joseph Suttle, Vicki Kakonis, Jeanne Sirna, Timothy Ridgway, Pamela Holmes and the Milwaukee Police Association, Plaintiffs-Appellants, v. City of Milwaukee, Board of Fire and Police Commissioners City of Milwaukee, Milwaukee Employes' Retirement System and Annuity and Pension Board and Milwaukee Police Chief Arthur Jones, in his official capacity, Defendants-Respondents.

    Court of Appeals

      No. 99-2355.

      Submitted on briefs November 7, 2000.

    Decided December 19, 2000.

    2001 WI App 55
    (Also reported in 624 N.W.2d 859.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of John F. Fuchs and Marcia A. Snow of Fuchs Snow DeStefanis, S.C., of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Grant F. Langley, city attorney, and Leonard A. Tokus, assistant city attorney.
    Before Wedemeyer, P.J., Fine and Curley, JJ.

      Petition to review granted.

   CURLEY, J.

¶ 1. The Milwaukee Police Association (MPA), appeals the grant of summary judgment to the City of Milwaukee et al. (the City) and the denial of its summary judgment motion. On appeal, the MPA argues that the trial court erred in dismissing its cause of action because: (1) there was no privity between the MPA and the twenty-three officers who brought the original suit and, thus, the doctrine of claim preclusion does not bar the MPA from maintaining the instant action, and (2) the MPA was entitled to a writ of mandamus compelling the City to promote qualified officers to the rank of Police Alarm Operator under WlS. STAT. § 62.50(9) (1997-98). We reverse and direct the trial court to grant the writ of mandamus.

I. Background.

¶ 2. Milwaukee Police Officer Robert Pasko, twenty-two other current and former Milwaukee Police Officers, and the MPA filed this action following this court's decision in Pasko et al. v. City of Milwaukee et al., 222 Wis. 2d 274, 588 N.W.2d 642 (Ct. App. 1998), which determined that the officers were entitled to back-pay because they were assigned the duties of Police Alarm Operator and the City breached its collective bargaining agreement with them by permanently underfilling the rank of Police Alarm Operator rather than filling their positions by promotion. The MPA is a labor union and the certified collective bargaining unit for all City of Milwaukee Police Officers in non-supervisory ranks, including the twenty-three officers who originally brought both actions. The MPA represented the individually named officers, as well as the rest of its member officers, in negotiating the collective bargaining agreement at issue in the first case; however, it was not a named party in that action. In the instant case, the MPA is seeking to compel promotions to the rank of Police Alarm Operator for officers qualified to hold the rank, including, but not limited to, the individually named officers.

¶ 3. The relevant facts are set forth at length in the previous opinion, and remain undisputed. The City underfilled the Police Alarm Operator positions in the Milwaukee Police Department and assigned officers holding a lesser rank to perform the duties of Police Alarm Operators on a permanent basis without compensating the officers accordingly or promoting anyone to that rank since 1986. The trial court in the first case noted that:

"There is no applicable legal definition of the term underfilling in statutes or case law and the contract is silent on the issue. . . . The undisputed facts . . . indicate that underfilling is used by the department normally on an occasional and temporary basis. The facts presented indicate that the department has chosen to not permanently promote officers to the Police Alarm Operator position, and instead continuously underfills the position with both long term and short term Police Officer replacements. The duties performed by these replacement[s] are substantially the same as those performed by the properly promoted Police Alarm Operators who receive the higher rate of pay."

Id. at 278 (quoting the trial court's decision granting summary judgment in the original action). Further the trial court found that:

"Underfilling in and of itself is a permissible practice when done on an occasional and temporary basis[.] [H]owever[,] when coupled with an undisputed, yet unofficial, policy of not promoting anyone to those positions on a permanent basis, [it] stops being temporary underfilling, and turns into a permanent practice that violates the terms of the contract."

Id. (quoting the trial court's decision).

¶ 4. In that case, the trial court awarded back-pay to the officers, finding that by underfilling the ranks of Police Alarm Operators, the City breached the terms of the collective bargaining agreement. This court upheld the award of back-pay. We adopted the trial court's analysis and determined that the City attempted to "circumvent [its] contractual compensation obligations" by improperly reclassifying the officers. Id. at 282. Subsequently, the officers and the MPA brought this mandamus action seeking to compel the City to fill the vacancies in the Police Alarm Operator position by either promotion of the individually named officers, or other qualified officers.

¶ 5. The City, as well as the officers and the MPA, filed summary judgment motions. Relying on the earlier case, the trial court found that the doctrine of claim preclusion barred the officers and the MPA from bringing the subsequent action. The trial court noted that although the MPA was not a named party in the earlier case, it was in privity with the officers and, therefore, it also was barred from maintaining the subsequent action. Based on its findings, the trial court denied the officers' and the MPA's summary judgment motion and granted the City's summary judgment motion dismissing the case.

II. Analysis.

¶ 6. Our review of the trial court's grant of summary judgment is de novo. See Green Springs Farms v. Kersten, 136 Wis. 2d 304, 315-16, 401 N.W.2d 816 (1987). We use the same summary judgment methodology as the trial court. See id. That methodology has been described in many cases, see e.g., Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1990), and need not be repeated here. Summary judgment must be granted if the evidentiary material demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. Rule 802.08(2).

¶ 7. On appeal, the MPA argues that the doctrine of claim preclusion does not bar it from bringing the instant action because, contrary to the trial court's finding, it is not in privity with the individually named officers. The MPA also argues that pursuant to Wis. Stat. § 62.50(9), it is entitled to a writ of mandamus compelling the City to promote qualified police officers to the rank of Police Alarm Operator. Therefore, the MPA concludes that the trial court erred in granting summary judgment in favor of the City. We agree with the MPA on both issues.

A. Claim preclusion does not apply.

¶ 8. Here, the trial court found:

In this case, it is undisputed that the MPA is the collective bargaining agent that negotiated the contract that is at the heart of both this case and the prior case and [the MPA] admittedly was not a party in the first case but certainly to say that the ... individually-named plaintiffs are barred but the representative and agent is not would be to put form over substance.

The trial court further determined that there existed "such an interrelationship of the parties and the issues that are being raised," that the MPA and the officers were in privity. Therefore, the trial court found that, although the MPA was not a party to the preceding action, the doctrine of claim preclusion acted to bar it from the instant action. We disagree.

¶ 9. Our supreme court has instructed that, "under claim preclusion 'a final judgment is conclusive in all subsequent actions between the same parties [or their privies] as to all matters which were litigated or which might have been litigated in the former proceedings.' " Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995) (citation omitted). "[Cjlaim preclusion is 'designed to draw a line between the meritorious claim on the one hand and the vexatious, repetitious and needless claim on the other hand.'" Id. (citation omitted). The supreme court further specified that:

In order for the earlier proceedings to act as a claim-preclusive bar in relation to the present suit, the following factors must be present: (1) an identity between the parties or their privies in the prior and present suits; (2) an identity between the causes of action in the two suits; and, (3) a final judgment on the merits in a court of competent jurisdiction.

Id. at 551.

¶ 10. Contrary to the trial court's ruling, there was no privity between the officers who brought the preceding suit and the MPA. "In order to be in privity with a party to a judgment, one must have such absolute identity of interests that the party to the earlier action represented the same legal interest as the non-party to that first action." Amber J.F. v. Richard B., 205 Wis. 2d 510, 516, 557 N.W.2d 84 (Ct. App. 1996). The officers and the MPA do not share the requisite "absolute identity of interests."

¶ 11. Although the interests of the officers and the MPA are overlapping, they are not identical. In both the preceding action and the instant action, the individually named officers' interests were exclusively personal. In the first suit, "[t]he officers sought to recover the difference between their compensation as police officers and the higher compensation they would have received as police alarm operators," as well as "promotion to the rank of police alarm operators." Pasko, 222 Wis. 2d at 277-78. However, in the instant action, while the MPA's interests include the promotion of the individually named officers as MPA members, its interests extend beyond the litigating officers to the rest of its members qualified to hold the rank of Police Alarm Operator. In other words, the MPA is seeking to compel the City to promote any of its qualified member-officers, not necessarily the incumbent officers. Consequently, this court is unable to conclude that the officers and the MPA share "such [an] absolute identity of interests" that the officers represented the same interests in the preceding suit that the MPA represents here. Therefore, the MPA is not in privity with the officers and it is not barred from bringing this cause of action.

B. Mandamus should he granted.

¶ 12. The MPA also argues that it is entitled to a writ of mandamus compelling the City to fill the vacancies in the rank of Police Alarm Operator by promoting qualified officers. Specifically, the MPA asserts that the collective bargaining agreement, in effect, established the rank of Police Alarm Operator as a separate and distinct rank from that of Police Officer. The MPA contends that the City is required to fill vacancies in the rank of Police Alarm Operator by promoting qualified officers pursuant to WlS. STAT. § 62.50(9), which, in pertinent part, provides:

All vacancies in either department shall be filled and all new appointments shall be made by the respective chiefs with the approval of the board. Where vacancies in old offices or newly created offices can, with safety to the department, be filled by the promotion of officers or persons already in the service and who have proved their fitness for the promotion, the vacancies in newly created offices shall be so filled by promotion by the respective chiefs with the approval of the board.

The MPA concludes that, under the collective bargaining agreement and the plain language of the statute, the City is obligated to promote qualified officers to fill the rank of Police Alarm Operator and, therefore, it is entitled to a writ of mandamus compelling the promotions. We agree.

¶ 13. Our supreme court has determined that a writ of mandamus may be used to compel public officers " 'to perform duties arising out of their office and presently due to be performed.'" Law Enforcement Standards Bd. v. Village of Lyndon Station, 101 Wis. 2d 472, 494, 305 N.W.2d 89 (1981) (citation omitted). "[H]owever, the duty to act must be clear and unequivocal,"- otherwise " 'when the duty is not clear and unequivocal and requires the exercise of discretion,'" courts may not" 'compel action through mandamus.'" Id. (citation omitted). In order for a writ of mandamus to be issued, four prerequisites must be satisfied: "(1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and (4) no other adequate remedy at law." Id. We conclude that the MPA has satisfied the prerequisites.

¶ 14. WISCONSIN Stat. § 62.50(9), in conjunction with the collective bargaining agreement, satisfies the first and second prerequisite. The plain language of § 62.50(9) places a "positive and plain duty" upon the City to fill the vacancies in the Police Alarm Operator rank through promotion. "The primary source for the construction of a statute is the language of the statute itself." State v. Dean, 163 Wis. 2d 503, 510, 471 N.W.2d 310 (Ct. App. 1991). When the statutory language is clear and unambiguous, we arrive at the intention of the legislature by giving the language its ordinary and accepted meaning. See id. Section 62.50(9) indicates that "[a]ll vacancies ... shall be filled," and that where vacancies can be filled by promotion, "the vacancies ... shall be so filled." Wis. Stat. § 62.50(9) (emphasis added). The statute's use of the word "shall" as opposed to "may" places a ministerial, rather than a discretionary, obligation on the City to fill vacancies within a reasonable time whenever possible via promotion. See State v. McKenzie, 139 Wis. 2d 171, 176-77, 407 N.W.2d 274 (Ct. App. 1987). Therefore, we conclude that § 62.50(9) requires the City to take reasonable steps to promote qualified officers in order to fill available Police Alarm Operator positions, thus creating a "positive and plain duty."

¶ 15. We also conclude that the members of the MPA have "a clear legal right" to the promotions. Article 2.1 of the collective bargaining agreement between the City and the MPA identifies the separate and distinct ranks of Police Officer and Police Alárm Operator. The preamble to the collective bargaining agreement evinces the intent of both the City and the MPA to be bound by the agreement. In the first Pasko case, this court determined that the City had a "contractual obligation to either promote [the individually named officers] or other officers to the [position of police alarm operator]." Pasko, 222 Wis. 2d at 276. We held that the City "unlawfully circumvented its contractual compensation obligations" by requiring police officers to perform the duties of Police Alarm Operators without promoting them accordingly. Id. at 276. Based upon our holding in the previous case, and the collective bargaining agreement, we are satisfied that any of the MPA's member officers that the City determines are qualified to fill vacancies in the position of Police Alarm Operator have a "clear and legal right" to receive official promotion to that rank according to the dictates of WlS. Stat. § 62.50(9). For these reasons, we conclude that the MPA has satisfied the first two prerequisites.

¶ 16. Next, absent a writ of mandamus compelling the City to fill vacancies in the Police Alarm Operator position by promoting qualified officers, the officers assigned to perform the duties will suffer "substantial damages" in the form of reduced retirement benefits. An officer's retirement benefits, pension, etc., are determined according to the official rank held by the officer upon retirement. Therefore, if qualified officers performing the duties of a Police Alarm Operator are not officially promoted to that rank, they will be forced to collect reduced benefits when they retire. Obviously such an outcome would inflict "substantial damages" on the officers affected.

¶ 17. Finally, the MPA possesses "no other adequate remedy at law." Despite the City Board of Fire and Police Commissioners' recommendation that vacancies in the rank of Police Alarm Operator be filled via promotion, there have been no promotions to that rank since 1986. Currently, there are vacancies in the Police Alarm Operator position, some of which are being filled by temporary applicants, and others that remain unfilled. The record is devoid of any evidence upon which this court could conclude that the Police Chief intends to discontinue the fourteen-year-old practice of underfilling these vacancies rather than promoting qualified officers. Moreover, while the first Pasko case requires the City to compensate the officers assigned the duties of a Police Alarm Operator commensurate with that rank, the decision did not require the City to promote the individually named officers involved in that case or any other qualified officers. Absent a writ of mandamus compelling the City to fill vacancies in the rank of Police Alarm Operator via promotion instead of underfilling the available positions, the MPA possesses no other adequate remedy at law.

¶ 18. For all of the above stated reasons, we conclude that the MPA is entitled to a writ of mandamus compelling the City to fill available positions in the rank of Police Alarm Operator by promoting qualified officers, rather than underfilling the position. Accordingly, we reverse the judgment of the circuit court and remand for entry of a writ of mandamus consistent with this opinion.

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

       The defendants-respondents are the City of Milwaukee; the City of Milwaukee Board of Fire and Police Commissioners; Milwaukee Employes' Retirement System and Annuity and Pension Board; and Milwaukee Police Chief, Arthur Jones, in his official capacity.

       The original plaintiffs in this case were twenty-three individually named current or former Milwaukee Police Officers as well as the Milwaukee Police Association. The notice of appeal indicates that the individually named officers and the MPA appealed from the trial court's order; however, in the brief to this court, counsel representing both the officers and the MPA indicated that they "must concede that the 23 individually named plaintiffs in this action were also the plaintiffs in Pasko et al. v. City of Milwaukee et al., 222 Wis. 2d 274, 588 N.W.2d 642 (Ct. App. 1998), and are barred from this action." Therefore, we shall only address the trial court's ruling as it affects the MPA.
      All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       In its decision, the trial court purported to dismiss the action without reaching the merits. However, the MPA correctly notes that, "[w]hile the trial court stated that it was not ruling on the merits of this action, instead granting summary judgment to [the City] on the basis of claim preclusion, it summarily stated that [WlS. STAT. § 62.50 (9)] merely authorizes a police chief to fill a vacant position, 'but does not require it.'" Because the facts of the case are not in dispute, and because the trial court did, in fact, comment on the merits of the case, we shall likewise reach the merits of the MPA's claim.


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Joseph F. Rizzo, Defendant-Appellant.
    Court of Appeals

      No. 99-3266-CR.

      Oral argument October 31, 2000.

    Decided December 20, 2000.

    2001 WI App 57
    (Also reported in 624 N.W.2d 854.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Franklyn M. Gimbel and Kathryn A. Keppel of Gimbel, Reilly, Guerin & Brown,
      Milwaukee. There was oral argument by Kathryn A. Keppel.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeffrey J. Kassel, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by Jeffrey J. Kassel.

    Before Nettesheim, Anderson and Snyder, JJ.

      Petition to review granted.

   ANDERSON, J.

¶ 1. Joseph F. Rizzo appeals from a judgment of conviction for three counts of second-degree sexual assault of a child contrary to WlS. STAT. § 948.02(2) (1997-98), repeated sexual assault of the same child contrary to WlS. Stat. § 948.025(1), and party to the crime of intimidation of a victim with threat of force contrary to Wis. Stat. §§ 940.45(3) and 939.05. Rizzo offers two arguments on appeal: (1) the trial court's refusal to allow the defense to conduct an independent medical examination and its refusal to require the State to produce Dr. Linda Pucci's file violated Rizzo's constitutional rights, and (2) the trial court's admission of dissimilar and remote allegations, of prior sexual misconduct by Rizzo constitutes an erroneous exercise of discretion. First, we will dispose of Rizzo's argument regarding the admission of other acts evidence. We will then address the dispositive issue of whether Rizzo's constitutional rights were violated. And, although we frame the issue differently, we agree with Rizzo that his constitutional rights to due process and to a fair trial were violated. We therefore reverse and remand for a new trial.

Facts and Analysis: Admission of Other Acts Evidence

¶ 2. Rizzo argues that the trial court's admission of other acts evidence constitutes an erroneous exercise of discretion. We disagree. Our supreme court has consistently held that in sexual assault cases, especially those involving assaults against children, the greater latitude rule applies together with the Sullivan framework. See State v. Davidson, 2000 WI 91, ¶ 44, 236 Wis. 2d 537, 613 N.W.2d 606.

¶ 3. The greater latitude rule, first stated in 1893 in Proper v. State, 85 Wis. 615, 628-30, 55 N.W. 1035 (1893), see Davidson, 2000 WI 91 at ¶ 37, is a "general principle governing the analysis of whether the other crimes evidence at issue was properly admitted in the context of a sexual assault case." Davidson, 2000 WI 91 at ¶ 50. The effect of the rule is to allow a more liberal admission of other acts evidence in sexual assault cases involving child victims. See id. at ¶ 51.

¶ 4. The Sullivan three-step analytical framework is as follows:

(1) Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § (Rule) 904.04(2), such as establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident?
(2) Is the other acts evidence relevant, considering the two facets of relevance set forth in Wis. Stat. § (Rule) 904.01? The first consideration in assessing relevance is whether the other acts evidence relates to a fact or proposition that is of consequence to the determination of the action. The second consideration in assessing relevance is whether the evidence has probative value, that is, whether the other acts evidence has a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence.
(3) Is the probative value of the other acts evidence substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay[,] waste of time or needless presentation of cumulative evidence?

State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998) (footnote and citation omitted).

¶ 5. On appeal, the question is not whether this court would have admitted the other acts evidence, "but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record." Davidson, 2000 WI 91 at ¶ 53 (citation omitted). "Thus, the trial court's exercise of discretion will be sustained if the trial court reviewed the relevant facts; applied a proper standard of law; and using a rational process, reached a reasonable conclusion." Id. In a written decision, the trial court properly applied the Sullivan three-step analysis:

The acts which took place some years ago are remarkably similar to the allegations before the Court in this case ... [and the] evidence does tend to make the consequential fact or proposition more probable than it would be without it. It further can be relevant if used in regard to credibility of the child witness.
Finally, as to the probative value, the Court does not believe it is outweighed by undue prejudice, confusion of issues, or misleading of the jury or by considerations of undue delay waste of time or needless presentation of cumulative evidence.
While these other acts may be chronologically old, they are very similar in nature.

The trial court did not err in deciding that "[t]he probative value in this case outweighs the danger of unfair prejudice." We hold that the trial court properly exercised its discretion in admitting the other acts evidence.

Facts and Analysis: Rizzo's Constitutional Rights

¶ 6. Whether Rizzo's constitutional rights were violated is a threefold issue. First, for the reasons discussed below, we hold that the State, through Dr. Pucci, presented expert testimony at trial. Consequently, we must decide whether the State is shielded from the Maday rule. See State v. Maday, 179 Wis. 2d 346, 357, 507 N.W.2d 365 (Ct. App. 1993) (the State may not present expert testimony when the defendant is prevented from doing the same). The State argues that it is shielded because the expert testimony it presented was through an expert obtained by the victim and not by the State in anticipation of trial. Finally, we must determine whether Rizzo's constitutional rights were violated when the State reneged on its pretrial assurance that it would not put on the expert testimony of Dr. Pucci.

¶ 7. We conclude that the State put on expert testimony through Dr. Pucci because Pucci testified that the victim's behavior was consistent with the behavior of child victims of sexual abuse. An expert is asked an "expert opinion" if he or she is asked to testify whether the victim's behavior is "consistent" with the behavior of children who are victims of sexual abuse. See State v. Jensen, 147 Wis. 2d 240, 245-46, 432 N.W.2d 913 (1998). At trial, Dr. Pucci, having acknowledged that the victim delayed reporting the alleged abuse for one year, testified "to a reasonable degree of psychological certainty" as to what the "most common reasons" are as to why someone who has been sexually abused might not immediately report the abuse. Dr. Pucci cited a behavior displayed in the victim: her delayed report of the sexual abuse. Dr. Pucci then explained why victims of sexual abuse would behave in the same manner as the victim. We conclude that Dr. Pucci's testimony is tantamount to testimony offered to explain whether a victim's behavior is "consistent" with the behavior of children who are victims of sexual abuse. Dr. Pucci was asked for and gave her expert opinion.

¶ 8. When the State presented Jensen evidence through the expert testimony of Dr. Pucci, the Maday rule was triggered. The Maday rule requires that a defendant be given the opportunity to discover the psychological condition of the victim in order to present meaningful evidence to counter the State's Jensen evidence. See Maday, 179 Wis. 2d at 357. The State acknowledges the rule established in Maday, but incorrectly argues that our holding in State v. David J.K., 190 Wis. 2d 726, 528 N.W.2d 434 (Ct. App. 1994), shields it from the Maday rule.

¶ 9. In David J.K., we held that the "psychological examination of the victim authorized in Maday is strictly limited to situations in which the prosecution retains experts in anticipation of trial in order to present Jensen evidence." David J.K., 190 Wis. 2d at 735. We acknowledge that the victim hired Dr. Pucci; however, the State at some point retained Dr. Pucci as its witness and considered how it would use Dr. Pucci and what questions it would ask of her in anticipation of trial. Unlike the State, we do not read David J.K. to require that the State have hired the expert. We simply read the holding to indicate that whenever the State intends to present Jensen evidence through an expert it has kept on hold or retained in anticipation of trial, the Maday rule is triggered.

¶ 10. The State originally planned to present Jensen-type evidence and then, changing course, decided to play it "conservatively," offering assurance to the trial court and to Rizzo that it would not put on Jensen-type evidence through Dr. Pucci. Based on the State's representation, the trial court denied Rizzo's request for an independent psychological examination of the victim. At trial, the State reneged on its assurance: the State presented Jensen-type testimony through Dr. Pucci. At this point, Rizzo had no recourse. Trial had begun; there no longer existed an opportunity for Rizzo to request a pretrial independent psychological examination of the victim.

¶ 11. If the trial court had known that the State would present expert testimony of this kind, it could have made a pretrial ruling based on accurate information. Instead, the State, in giving the trial court pretrial assurance that it would not introduce Jensen evidence, thwarted the trial court's exercise of discretion to grant Rizzo's motion for a psychological examination of the victim. Cf. Maday, 179 Wis. 2d at 349—50 (trial court has discretion to grant a motion for a psychological examination of a victim when the State gives notice that it intends to introduce evidence generated by a psychological examination of the victim by the State's experts). There remained no opportunity for the playing field to be leveled once trial had begun.

¶ 12. Maday is not an 'empty holding and the State may not present Jensen-type evidence when the defendant is prevented from doing the same. See Maday, 179 Wis. 2d at 357. This would give the State an improper strategic advantage and deprive the defendant of a level playing field. See id. A fair trial cannot be guaranteed by responsive mechanisms such as cross-examination and argument when the State relies on experts who have previously examined the victim. See id. at 355-57.

¶ 13. We hold that the requirements imposed by Maday were triggered when the State reneged upon its pretrial representation and presented Jensen-type evidence during trial. If this were not the case, Maday would be an empty holding indeed allowing the State to block a defendant's Maday rights simply by making a false pretrial representation, only to renege upon it at trial without consequence.

¶ 14. We therefore conclude that the State must make a pretrial representation if it intends to put on Jensen-type testimony. The State's failure to notify the trial court and Rizzo that it would offer Jensen-type testimony precluded the "level playing field" required under Maday. See Maday, 179 Wis. 2d at 357. A level playing field would have given Rizzo the pretrial right to an independent psychological examination of the victim. Instead, Rizzo lost his right to obtain access to relevant evidence necessary to be heard in his own defense. Rizzo's constitutional rights to due process and to a fair trial were denied.

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

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

         See State v. Sullivan, 216 Wis. 2d 768, 772, 576 N.W.2d 30 (1998).

      The exchange at trial was as follows:
      [STATE]: Dr. Pucci, do you have an opinion as to a reasonable degree of psychological certainty why someone would not report a crime like this under these circumstances?
      [DEFENSE]: Objection, your Honor.
      [THE COURT]: It's overruled. The witness may answer.
      [DR. PUCCI]: Could you repeat the question?
      [STATE]: Do you have an opinion to a reasonable degree of psychological certainty why someone would, in this position, would not immediately report a crime like this?
      [DR. PUCCI]: Often people are reluctant to report this kind of crime because of threats the offender or the abuser makes to them about it, either directly telling them not to tell or threatening them if they do tell. Often people are embarrassed. They may be afraid that they are not going to be believed. Sometimes they have some positive feelings about the abuser and may not want to get that person into trouble. Those tend to be the most common reasons.

       The State said, "[I] am going to represent now, and will not intend on direct examination . . . [to] elicit expert Jensen-type testimony from Dr. Pucci_If I do think it is necessary to elicit some Jensen testimony, I will call another expert and certainly put the Court and defense on notice with a curriculum vitae attached."

       The trial court stated, "On the representations made by the State, the Court agrees that [the defendant] [is] not entitled to any independent psychological examination."

       We note that Rizzo made several attempts to obtain discovery related to the victim's mental health treatment records. In response, the State directed Dr. Pucci, the victim's psychologist, to prepare a written summary report of her treatment of the victim. At the pretrial hearing, the trial court ruled that Rizzo could only have access to Dr. Pucci's written summary report and denied Rizzo access to Dr. Pucci's treatment records. We hold that when Dr. Pucci gave Jensen-type testimony, she went beyond the scope of her summary report. Thus, when Rizzo argued that he was entitled access to the treatment records in order to cross-examine Dr. Pucci, the trial court should have granted Rizzo's request. Instead, the trial court rejected Rizzo's argument and denied access to the records.


author: SCHUDSON, J.

text:
    State of Wisconsin ex rel. Clarence Saffold, Petitioner-Appellant, v. David H. Schwarz, Administrator, Division of Hearings and Appeals, Respondent-Respondent.
    Court of Appeals

      No. 99—2945.

      Submitted on briefs December 7, 2000.

    Decided January 9, 2001.

    2001 WI App 56
    (Also reported in 625 N.W.2d 333.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs oí Brian C. Findley, deputy first assistant state public defender.
    On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Corey F. Finkelmeyer, assistant attorney general.
    Before Fine, Schudson and Curley, JJ.

       Petition to review denied.

   SCHUDSON, J.

¶ 1. Clarence Saffold appeals from the circuit court order dismissing his petition for a writ of certiorari, following his parole revocation. He argues that the circuit court erred in concluding that the Prisoner Litigation Reform Act (PLRA) applied to his challenge to his parole revocation and, therefore, that the PLRA's forty-five-day time limit for filing such a challenge required dismissal of his petition. We affirm.

¶ 2. On December 1, 1998, Saffold was paroled following his imprisonment for two burglary convictions. On June 7,1999, his parole was revoked. Saffold administratively appealed his revocation. On June 30, 1999, David H. Schwarz, Administrator of the Wisconsin Division of Hearings and Appeals, entered an "Appeal Decision" sustaining Saffold's revocation.

¶ 3. On October 14,1999,129 days after the June 7, 1999 order revoking his parole, and 106 days after the June 30, 1999 decision sustaining the revocation, Saffold filed a petition for a writ of certiorari in the circuit court, challenging the revocation. On October 27, 1999, the circuit court entered an order concluding that the PLRA "requires all petitions for writ of certio-rari to be filed within 45 days of the final decision issued by the [Administrator of the Division of Hearings and Appeals]," and dismissing Saffold's petition as "untimely."

¶ 4. Saffold argues that the forty-five-day time limit under the PLRA does not apply to his challenge to his parole revocation and, therefore, that he had six months to file his petition. See State ex rel. Czapiewski v. Milwaukee City Serv. Comm'n, 54 Wis. 2d 535, 538, 196 N.W.2d 742 (1972) ("[W]hen no statutory time [is] prescribed within which a petition for a writ of certio-rari could be made to review a final order of an agency," certiorari proceedings challenging the order must be commenced within six months.). We disagree.

¶ 5. Wisconsin Stat. § 893.735 (1997-98) governs an "[a]ction by [a] prisoner contesting a governmental decision" and provides, in part:

(2) An action seeking a remedy available by certiorari made on behalf of a prisoner is barred . unless commenced within 45 days after the cause of action accrues. The 45-day period shall begin on the date of the decision or disposition, except that the court may extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition.. . .
(3) In this section, an action seeking a remedy available by certiorari is commenced at the time that the prisoner files a petition seeking a writ of certiorari with a court.

Whether the forty-five-day time limit under § 893.735 applies to Saffold's petition for a writ of certiorari presents an issue of statutory interpretation, a question of law which we review de novo. See State v. Sample, 215 Wis. 2d 487, 495, 573 N.W.2d 187 (1998).

¶ 6. On appeal, Saffold initially presented several arguments challenging the applicability of the PLRA and its forty-five-day time limit to certiorari review of his parole revocation. As Saffold now must concede, however, almost all of his arguments have been defeated by: (1) this court's decision in State ex rel. Frohwirth v. Wisconsin Parole Commission, 2000 WI App 139, ¶¶ 6-7, 237 Wis. 2d 627, 614 N.W.2d 541, holding that the forty-five-day time limit of WlS. STAT. § 893.735 applies to a certiorari petition seeking review of a denial of parole unless the petitioner has been incarcerated outside Wisconsin within forty-five days of the denial; and (2) the supreme court's even more recent decision in State ex rel. Cramer v. Wisconsin Court of Appeals, 2000 WI 86, ¶ 3, 236 Wis. 2d 473, 613 N.W.2d 591, reconsideration denied, 2000 WI 121, 239 Wis. 2d 314, 619 N.W.2d 96, holding that persons challenging probation revocation are "prisoners" under the PLRA and, therefore, that their petitions for certiorari review of probation revocation must be filed within the forty-five-day time limit under § 893.735(2).

¶ 7. Saffold presents one additional argument, regarding an issue addressed by neither Frohwirth nor Cramer: that because he is an in-state prisoner, and because Frohwirth held that the forty-five-day time limit did not apply to out-of-state prisoners, application of the time limit denies him "equal protection before the law." We conclude, however, that because a rational basis exists for distinguishing between instate and out-of-state prisoners for purposes of filing deadlines under the PLRA, WlS. Stat. § 893.735(2) does not deny Saffold equal protection.

¶ 8. We recently reiterated:

"The equal protection clause of the fourteenth amendment is designed to assure that those who are similarly situated will be treated similarly." Where the State is not discriminating based upon a suspect classification, the classification need only bear a rational relationship to a legitimate government interest. Simply because a statutory classification results in some inequity does not provide a basis for holding it to be unconstitutional. The legislative enactment must be upheld unless it is "patently arbitrary."

State v. Trepanier, 204 Wis. 2d 505, 509-10, 555 N.W.2d 394 (Ct. App. 1996) (citations omitted). Saffold argues that WlS. STAT. § 893.735 creates "two different classes of prisoners and cause[s] them to be treated differently." He contends that "no rational reason exists for treating similar revocation appeals dissimi-larly based solely [on] the arbitrary decision on where to incarcerate a prisoner." We disagree.

¶ 9. In State ex rel. Speener v. Gudmanson, 2000 WI App 78, 234 Wis. 2d 461, 610 N.W.2d 136, we rejected the State's argument that an inmate confined in an out-of-state county jail is a "prisoner," as defined in WlS. Stat. § 801.02(7)(a)2, who must, as a consequence, satisfy the filing fee requirements under the PLRA. Id. at ¶¶ 7 — 16. Reaching that conclusion, we analyzed both statutory and case-law authority and explained that, under § 801.02(7)(a)1, "any state or local facility" encompassed only those correctional facilities located in Wisconsin. Id. at ¶¶ 11-14. Thus, we concluded, "The legislature did not intend the restrictions of the PLRA to apply to all prisoners no matter where they are confined." Id. at ¶ 14.

¶ 10. Therefore, we implicitly recognized that the legislature, in defining "prisoner" and "correctional institution," and in enacting the PLRA, allowed for different procedures to govern litigation from prisoners, depending on whether they are incarcerated in Wisconsin or elsewhere. The distinction is not "patently arbitrary." Generally, Wisconsin legal resources — statutes, case law, law students regularly providing services in Wisconsin correctional institutions under the auspices of the University of Wisconsin Law School's Frank J. Remington Center, and lawyers familiar with Wisconsin law — are more readily available to prisoners incarcerated in Wisconsin. See Sambs v. City of Brookfield, 97 Wis. 2d 356, 371, 293 N.W.2d 504 (1980) (In reviewing an equal protection challenge, where the "legislature has not set forth its rationale" for a statutory provision, "it is the court's obligation to locate or to construct, if possible, a rationale that might have influenced the legislature and that reasonably upholds the legislative determination.").

¶ 11. Thus, the shorter filing deadline for prisoners in Wisconsin challenging parole revocation has a rational relationship to the legitimate governmental interests of the PLRA — "to restrict frivolous lawsuits" and "to limit broadly prisoner litigation at taxpayers' expense." Cramer, 2000 WI 86 at ¶ 40. Accordingly, we conclude that the forty-five-day filing deadline under WlS. Stat. § 893.735 does not deny Saffold equal protection of law.

By the Court. — Order affirmed.

       The circuit court order dismissing Saffold's petition for a writ of certiorari refers to "the Prisoner Litigation Reform Act (PLRA), 1997 Wis. Act 133." We note that Wisconsin statutory law does not mention the PLRA, and our case law alternates between stating that 1997 Wis. Act 133 is the PLRA, State ex rel. Adell v. Smith, 2000 WI App 188, ¶ 1, 238 Wis. 2d 655, 618 N.W.2d 208; State ex rel. Speener v. Gudmanson, 2000 WI App 78, ¶ 13, 234 Wis. 2d 461, 610 N.W.2d 136; State ex rel. Stinson v. Morgan, 226 Wis. 2d 100, 100, 593 N.W.2d 924 (Ct. App. 1999); State ex rel. Marth v. Smith, 224 Wis. 2d 578, 580, 592 N.W.2d 307 (Ct. App. 1999); Spence v. Cooke, 222 Wis. 2d 530, 533, 587 N.W.2d 904 (Ct. App. 1998), and that 1997 Wis. Act 133 created the PLRA, State ex rel. Cramer v. Wis. Ct. App., 2000 WI 86, ¶ 1, 236 Wis. 2d 473, 613 N.W.2d 591, reconsideration denied, 2000 WI 121, 239 Wis. 2d 314, 619 N.W.2d 96; State ex rel. Coleman v. Sullivan, 229 Wis. 2d 804, 805 n.1, 601 N.W.2d 335 (Ct. App. 1999).

       The circuit court order, concluding that Saffold's petition was filed "130 days after the final decision was issued," was incorrect in two respects. First, the court apparently was counting the days from the order revoking Saffold's parole, rather than the days from the final administrative "Appeal Decision" sustaining the revocation. Second, the court miscounted by one day. On appeal to this court, however, it is undisputed that Saffold filed his petition for a writ of certiorari 106 days after the final administrative "Appeal Decision," well beyond the forty-five days permitted under the Prisoner Litigation Reform Act.

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

         See also Gagnon v. Scarpelli, 411 U.S. 778, 782 n.3 (1973) ("Despite the undoubted minor differences between probation and parole, the commentators have agreed that revocation of probation... is constitutionally indistinguishable from the revocation of parole."); State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 342 n.3, 576 N.W.2d 84 (Ct. App. 1998) (”[B]ecause the review process for both probation and parole revocation is identical, we extend our holding to apply to both.").


text:
    State of Wisconsin, Plaintiff-Respondent, v. Joseph P. Bury, Defendant-Appellant.

    Court of Appeals

      No. 00-0478-CR.

      Submitted on briefs December 7, 2000.

    Decided January 9, 2001.

    2001 WI App 37
    (Also reported in 624 N.W.2d 395.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Donna L. Hintze, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Chris R. Larsen, assistant attorney general.
    Before Wedemeyer, P.J., Schudson and Curley, JJ.

      Petition to review denied.

   SCHUDSON, J.

¶ 1. Joseph P. Bury appeals from the judgment of conviction for two counts of first-degree sexual assault of a child, following a jury trial. He argues that the trial court erred in allowing the State to file an amended information charging the second count, which alleged the first-degree sexual assault of a child about whom, he says, no evidence was introduced at the preliminary hearing. We conclude that because the second count was not "wholly unrelated" to the offense on which evidence was introduced at the preliminary hearing, the court did not err in allowing the amendment to the information. Accordingly, we affirm.

¶ 2. On February 19, 1999, Bury was charged with one count of first-degree sexual assault of a child, for touching the vagina of Alicia, his five-year-old step-granddaughter, while she and her seven-year-old brother, Aaron, were sleeping at his house. Although the criminal complaint charged no other count, it also alleged that, on the same occasion, Bury touched Aaron's penis.

¶ 3. On March 1, 1999, at the preliminary hearing, the State offered brief testimony from Alicia's mother and from Milwaukee Police Detective Michael Braunreiter, who had interviewed Bury. Neither witness mentioned Aaron by name. Alicia's mother, however, acknowledged that her children regularly visited Bury and his wife on weekends, including the weekend of the alleged offense, and Detective Braunreiter testified that Bury confessed to touching Alicia's vaginal area "while he, his wife, Alicia and another child were in his bedroom." (Emphasis added.)

¶ 4. Bury was bound over for trial. The information, charging only the sexual assault of Alicia, was filed and Bury pled not guilty. On April 29,1999, however, the State filed an amended information charging a second count of first-degree sexual assault of a child, alleging that Bury also assaulted Aaron on the same occasion he assaulted Alicia.

¶ 5. The defense moved to dismiss the second count of the amended information "on the grounds that the testimony adduced at the preliminary hearing does not support the charge and the allegation contained therein pertains to an unrelated transaction to the victim which was the subject matter of the preliminary hearing." The motion was denied, a jury trial followed, and on June 28, 1999, Bury was found guilty of both counts of first-degree sexual assault. On appeal, Bury renews his argument that the second count was "wholly unrelated" to the first and, therefore, should not have been allowed. See State v. Fish, 20 Wis. 2d 431, 438, 122 N.W.2d 381 (1963) (An information may "allege acts in addition to those advanced on preliminary hearing so long as they are not wholly unrelated to the transactions or facts considered or testified to at the preliminary.").

¶ 6. As relevant to this case, Wis. Stat. § 971.01(1) (1997-98) provides, "The district attorney shall examine all facts and circumstances connected with any preliminary examination touching the commission of any crime if the defendant has been bound over for trial and... shall file an information according to the evidence on such examination . . . ." WISCONSIN Stat. § 971.29(1) provides, "A complaint or information may be amended at any time prior to arraignment without leave of the court." The supreme court has explained that § 971.29(1) "should be read to permit amendment of the information before trial and within a reasonable time after arraignment, with leave of the court, provided the defendant's rights are not prejudiced, including the right to notice, speedy trial and the opportunity to defend." Whitaker v. State, 83 Wis. 2d 368, 374, 265 N.W.2d 575 (1978).

¶ 7. "[O]ur review of the charges in an information is limited to the narrow question of 'whether the district attorney abused his [or her] discretion in issuing a charge not within the confines of and "wholly unrelated" to the testimony received at the preliminary examination.'" State v. Kittilstad, 231 Wis. 2d 245, 255, 603 N.W.2d 732 (1999). Whether a challenged count is "wholly unrelated" is subject to our de novo review. See State v. Richer, 174 Wis. 2d 231, 238-39, 496 N.W.2d 66 (1993). We conclude that the count alleging the sexual assault of Aaron is not "wholly unrelated" to the testimony, received at the preliminary examination, which alleged the sexual assault of Alicia.

¶ 8. In State v. Burke, 153 Wis. 2d 445, 451 N.W.2d 739 (1990), the supreme court declared: "[A] prosecutor may bring additional charges in the information so long as the charges are not wholly unrelated to the transactions or facts considered or testified to at the preliminary examination, irrespective of whether direct evidence concerning the charges had been produced at the preliminary examination." Id. at 457 (emphasis added). In Richer, the supreme court elaborated that, in order to clear the "wholly unrelated" hurdle, "counts contained in the information must flow from the same transaction for which evidence has been introduced at the preliminary hearing." Richer, 174 Wis. 2d at 247 (emphasis added). Clearly, in this case, the count involving Aaron flowed from the same transaction for which evidence was introduced at the preliminary hearing regarding the assault of Alicia.

¶ 9. The parties acknowledge that no Wisconsin appellate decision has directly addressed whether, in a sexual assault case, counts are "wholly unrelated" simply because the victims are different. The State argues, however, that "there is no logical reason why a prosecutor should be precluded from adding to an information counts which affect two or more victims but which are otherwise part of the same criminal transaction or 'common nucleus of facts.'" Further, noting that in this case the criminal complaint, preliminary hearing testimony, and trial testimony all described facts and circumstances surrounding the assault of Aaron as well as that of Alicia, the State contends that the counts are related because they "occurred during the same general time frame, and at the same geographic location," and they "shared an identical motive and criminal intent." Finally, the State submits that "[although the victims of each crime were different, they were also tied together both as siblings and by being the object of their grandfather's attempt for sexual gratification."

¶ 10. The State is correct. The supreme court has clarified that for a charge to not be "wholly unrelated to the transactions or facts considered or testified to" at a preliminary hearing, it "must be 'related in terms of parties involved, witnesses involved, geographical proximity, time, physical evidence, motive and intent.'" Burke, 153 Wis. 2d at 457. All seven factors need not be satisfied; instead, they "form a general framework for determining whether counts can be added to the information and yet meet the goals of the preliminary hearing." Richer, 174 Wis. 2d at 239-40. The second count in the instant case, however, satisfied all seven criteria.

¶,11- Except for the difference between the victims, the counts were closely related in every way. The parties involved were related, literally and legally. That is, Alicia and Aaron were related to each other and to their step-grandfather; and their assaults were related to each other, occurring at approximately the same time and location, and under the same circumstances. Further, the witnesses and physical evidence were the same, and Bury's motive and intent for both assaults were indistinguishable. Accordingly, we conclude that the trial court was correct in denying Bury's motion to dismiss the second count of the amended information.

By the Court. — Judgment affirmed.

       The complaint alleged that the crime occurred on or about February 6 or 7, 1999. Testimony at the preliminary hearing placed the date about one week earlier. Based on that testimony, Judicial Court Commissioner Anthony J. Machi, who presided over the preliminary hearing, granted the State's motion to amend the criminal complaint to charge one count of first-degree sexual assault of a child on or about February 1, 1999.

       Because the amended information alleged that the crimes occurred on or about February 6 or 7, 1999, the motion also requested "an order clarifying the date of the alleged offense in count one of the amended information on the grounds that the date set forth is different than the date testified to during the preliminary hearing." At the May 13, 1999 motion hearing, the prosecutor moved to amend the amended information to allege that the crimes occurred on or about February 1, 1999. While never formally ruling on that motion, the court, after hearing statements from the defense and the prosecutor regarding the amended information and the complaint, commented that it did not "have a problem with the date portion."

       All references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       In the trial court, Bury argued that the second count denied him due process because it did not allow him "the right to have a preliminary hearing [on that count] and challenge that transaction." He did not contend, however, that the addition of the second count denied him notice, speedy trial, or the opportunity to defend.

       Bury also argues for a new trial on count one. He contends that evidence of the assault of Aaron was the only corroboration of his confession to the assault of Alicia and, therefore, because no evidence regarding Aaron should have been admitted, he was entitled to a directed verdict on count one. His argument, however, is premised on his contention that the charge involving Aaron should not have been allowed; he does not challenge his conviction on count one on any other basis. Thus, having rejected his argument regarding count two, we need not further address his additional challenge to the conviction on count one.


author: DYKMAN, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Karl Steele III, Defendant-Appellant.

    Court of Appeals

      No. 00-0190-CR.

      Submitted on briefs July 20, 2000.

    Decided January 11, 2001.

    2001 WI App 34
    (Also reported in 625 N.W.2d 595.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Timothy J. Gaskell of Hanson & Gaskell, Westby.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Thomas J. Balistreri, assistant attorney general.
    Before Dykman, P.J., Vergeront and Roggensack, JJ.

      Petition to review dismissed.

   DYKMAN, P.J.

¶ 1. Earl Steele, III appeals from a judgment convicting him of armed burglary, in violation of WlS. STAT. § 943.10(2)(a) (1997-98), and an order denying his motion to withdraw his guilty pea. He asserts that, due to an inadequate plea colloquy, he did not understand which specific felony the State alleged that he intended to commit after entering a dwelling. Steele also contends that because the crime of "felon in possession of a firearm" is (1) a crime he was already committing when he entered a dwelling and (2) not a crime against persons or propérty, it cannot be the underlying felony supporting the burglary charge. Because we conclude that the plea colloquy did not need to specify the offense underlying the burglary charge, the plea colloquy was constitutionally adequate. Because we also conclude that a continuing crime meets the "intent to commit a felony" element of burglary, and that "felon in possession of a firearm" is a crime against persons or property, we conclude that Steele's plea was valid. We therefore affirm.

BACKGROUND

¶ 2. Steele was originally charged with armed burglary, mistreatment of an animal resulting in the animal's death, and felon in possession of a firearm. These charges stemmed from Steele's possession of a shotgun while entering Robert Crane's residence without Crane's consent. Before entering Crane's residence, Steele told Craig Harbour that he was "going to make this asshole leave her [Lori Crane] alone," referring to Crane. While in Crane's residence, Steele shot and killed Crane's dog. These facts are not in-dispute.

¶ 3. Steele agreed to plead guilty to the burglary charge, and the State agreed to dismiss the other two charges but read them in at sentencing. At the plea hearing, the court entered into a colloquy with Steele. The court asked defense counsel whether he believed that he had sufficient opportunity to discuss the case with Steele and whether he was satisfied that Steele understood the nature of the charge, the elements of the offense, and the effects of his plea. Trial counsel answered affirmatively. In addition to asking Steele if he had thoroughly discussed the case and his decision to plead guilty with his attorney, and if he understood that he was waiving constitutional rights (Steele answered affirmatively to both), the trial court asked Steele:

And do you also understand that by pleading guilty you are admitting, number one, that you entered a dwelling; number two, you entered intentionally; number three, you entered without the consent of someone in lawful possession of the premises; number four, at the time you entered you intended to commit a felony therein; and, number five, at the time you entered the dwelling you were armed with a dangerous weapon, and you used that dangerous weapon? Do you understand that?

Steele answered these questions affirmatively. The court accepted Steele's guilty plea and sentenced him. Steele filed a postconviction motion to withdraw the plea. The trial court denied the motion, and Steele appeals.

ANALYSIS

¶ 4. We review de novo a circuit court's conclusion that a guilty plea was made under constitutionally acceptable circumstances. State v. Duychak, 133 Wis. 2d 307, 313, 395 N.W.2d 795 (Ct. App. 1986).

¶ 5. A guilty plea that is not voluntarily, intelligently, and knowingly entered violates fundamental due process, and withdrawal of such a plea is a matter of right. State v. Nichelson, 220 Wis. 2d 214, 217, 582 N.W.2d 460 (Ct. App. 1998). We follow a two-step process in determining whether a plea was entered voluntarily, intelligently, and knowingly. Id. at 218. We first determine whether the defendant has made a prima facie showing that his or her plea was accepted not in conformity with WlS. STAT. § 971.08 or other mandatory duties imposed by the supreme court, and whether the defendant has properly alleged that he or she did not know or understand information provided at the plea hearing. Nichelson, 220 Wis. 2d at 218. If the defendant has made this prima facie showing, the burden then shifts to the State, which must demonstrate by clear and convincing evidence that the defendant's plea was voluntarily, intelligently, and knowingly entered. Id. For the State to meet this burden, the record must contain some evidence that the defendant knew and understood the essential elements of the crime. See id. at 225.

¶ 6. We first consider whether Steele has made a prima facie showing that the trial court's colloquy did not conform to WlS. STAT. § 971.08. The statute compels the trial court to "[a]ddress the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge." WlS. Stat. § 971.08(l)(a). However, the statute does not explain how a trial court should make that determination. State v. Bangert, 131 Wis. 2d 246, 266, 389 N.W.2d 12 (1986).

¶ 7. The supreme court has set forth guidelines for ascertaining a defendant's understanding of the nature of a charge. A defendant must be aware of the essential elements of the crime. Bangert, 131 Wis. 2d at 267. The trial court must first inform a defendant of the nature of the charge, or ascertain that a defendant possesses accurate information about the nature of the charge. Id. Then, the court must ascertain that a defendant understands the nature of the charge as required by WlS. Stat. § 971.08(l)(a). Bangert, 131 Wis. 2d at 267.

¶ 8. The trial court chose to summarize WlS. Stat. §943.10 during colloquy, in combination with questioning defense counsel. Steele contends that this summary was inadequate, since he was not specifically informed that the underlying felony for the burglary charge was "felon in possession of a firearm." A plea is not voluntary if the defendant does not understand the essential elements of the charge at the time the plea was entered. See Bangert, 131 Wis. 2d at 257-58. In effect, Steele is asserting that the specific nature of the underlying felony is an essential element of the charge. We disagree.

¶ 9. In State v. Hammer, 216 Wis. 2d 214, 219, 221, 576 N.W.2d 285 (Ct. App. 1997), we held that a defendant is not entitled to jury unanimity on the underlying felony in a burglary charge. The language of Wis. Stat. § 943.10 emphasizes the fact that the defendant intended to commit a felony; it does not matter which felony forms the basis of that intent. Hammer, 216 Wis. 2d at 220. Therefore, § 943.10 sets forth a "single offense with multiple modes of commission," not multiple offenses defined by each possible underlying felony. Hammer, 216 Wis. 2d at 220. It follows from our conclusion in Hammer that the nature of the particular underlying felony is not an essential element of a burglary charge and therefore need not be explained during colloquy in order to fulfill WlS. STAT. § 971.08(l)(a) requirements.

¶ 10. Because we conclude that the trial court adequately explained the elements of the charge to Steele, we also conclude that its failure to specify the underlying felony was not a defect in the plea proceedings.

¶ 11. It appears from Steele's brief that he is also arguing that his plea was invalid because "felon in possession of a firearm" cannot be the underlying felony for his burglary charge because it was a continuing offense. He cites no case law to support his contention, but argues that "[i]t is clear that the defendant did not form the intent to go inside the residence and commit the crime of felon in possession of a firearm."

¶ 12. Wisconsin Stat. § 943.10 proscribes the intentional entry into a dwelling without consent of a person in lawful possession of the dwelling "with intent to . . . commit a felony in such place." The statute is silent as to when the intent to commit the felony must be formed, and no Wisconsin case decides this issue.

¶ 13. Other states have recognized that a burglary can be committed when the defendant intends to continue to commit the underlying crime he or she was already committing before the unlawful entrance. In State v. Williams, 550 A.2d 1298, 1300-01 (N.J. Super. Ct. App. Div. 1988), a New Jersey appellate court concluded that entry into an apartment was the continuation of an eluding offense, and that did not "alter the fact that [the] defendant entered the apartment for the purpose of committing the crime of eluding," therefore supporting the burglary charge.

¶ 14. In Britton v. State, 604 So. 2d 1288, 1290 (Fla. Dist. Ct. App. 1992), a Florida appellate court held that entry into a house with the intent to hide from pursuing officers may constitute burglary, based on its conclusion that "there is no requirement that [the] crime must be one that can be completed solely within fixed limits of [a] particular place, only that [the] crime is intended to be committed there."

¶ 15. New J. Rev. Stat. § 2C:18-2 (1995) is analogous , to the Wisconsin statute in that it defines burglary as the unlawful entering of a building "with. purpose to commit an offense therein." Florida Stat. § 810.02(1) (2000) is analogous to the Wisconsin statute in that it defines burglary as "entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein . . . Because the language of both the New Jersey and the Florida burglary statutes is similar to WlS. Stat. § 943.10, we are persuaded by the interpretations of those states' courts.

¶ 16. It is also important to note that Steele intended to possess a firearm while he was in the dwelling. Harbour told the police that, when Steele took possession of the shotgun outside the residence, he told Harbour that he was "going to make this asshole leave her alone." This was the purpose for which Steele possessed the firearm. He therefore intended to possess the firearm not only outside the residence, but also while inside the residence.

¶ 17. Based on the language of the statute, persuasive authority, and Steele's comment to Harbour, we conclude that a person commits a burglary when he or she unlawfully enters the premises with the intent to commit a felony while on the premises, regardless of whether the defendant's actions while inside the premises constitute a new crime or the continuation of an existing offense.

¶ 18. Finally, Steele argues that "felon in possession of a firearm" cannot be an underlying felony for a burglary charge because it is not a crime against persons or property. We disagree.

¶ 19. The supreme court has concluded that the legislature intended to include only offenses against persons or property within the felonies that could form a basis for a burglary charge under Wis. STAT. § 943.10. State v. O'Neill, 121 Wis. 2d 300, 307, 359 N.W.2d 906 (1984). The purpose of the restriction on a convicted felon's ability to possess a firearm under WlS. STAT. § 941.29 concerns public safety. State v. Thiel, 188 Wis. 2d 695, 707-08, 524 N.W.2d 641 (1994). The legislature has determined that felons are more likely to misuse firearms. State v. Coleman, 206 Wis. 2d 199, 210, 556 N.W.2d 701 (1996).

¶ 20. We have previously concluded that violation of the conditions of a bond is a crime against persons or property, and therefore a valid underlying felony which can support a burglary charge. State v. Semrau, 2000 WI App 54, ¶ 3, 233 Wis. 2d 508, 608 N.W.2d 376, review denied, 2000 WI 36, 234 Wis. 2d 176, 612 N.W.2d 733. We based that conclusion on the fact that one purpose of the bail jumping statute is "protecting members of the community from serious bodily harm or preventing intimidation of witnesses." Id. at ¶ 33 (quoting Wis. Stat. § 969.01(4)).

¶ 21. Because bail jumping is a crime against persons or property, we are convinced that "felon in possession of a firearm" is as well. The misuse of firearms is at least as likely to bring harm to persons as the intimidation of a witness. Because the legislature has determined that felons are more likely to misuse firearms, Coleman, 206 Wis. 2d at 210, public safety is particularly a concern when felons possess firearms. The facts of this case underscore the point: Steele's comment to Harbour strongly suggests that Steele planned to harm Crane when he took possession of the firearm. "Felon in possession of a firearm" is a crime against persons or property, therefore it could validly form the basis for the intent to commit a felony element of a burglary charge.

By the Court. — Judgment and order affirmed.

      All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted. WISCONSIN STAT. § 943.10 states in relevant part:
      (1) Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony in such place is guilty of a Class C felony:
      (a) Any building or dwelling;
      (2) Whoever violates sub. (1) under any of the following circumstance is guilty of a Class B felony:
      (a) While armed with a dangerous weapon or a device or container described under s. 941.26(4)(a).

       WISCONSIN STAT. § 971.08 states in relevant part:
      (1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
      (a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.
      (b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.
      (c) Address the defendant personally and advise the defendant as follows: "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law."
      (d) Inquire of the district attorney whether he or she has complied with s. 971.095 (2).

       New J. Rev. Stat. § 2C:18-2 (1995) states in relevant part:
      A person is guilty of burglary if, with purpose to commit an offense therein he:
      (1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter; or
      (2) Surreptitiously remains in a research facility, structure, or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so.
      Florida Stat. § 810.02(1) (2000) states:
      "Burglary" means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

       Wisconsin Stat. § 941.29 states in relevant part:
      (1) A person is subject to the requirements and penalties of this section if he or she has been:
      (a) Convicted of a felony in this state.
      (b) Convicted of a crime elsewhere that would be a felony if committed in this state.
      (2) A person specified in sub. (1) is guilty of a Class E felony if he or she possesses a firearm under any of the following circumstances:
      (a) The person possesses a firearm subsequent to the conviction for the felony or other crime, as specified in sub. (1) (a) or (b).


author: ROGGENSACK, J.

text:
    Wisconsin Department of Revenue, Petitioner-Appellant, v. Caterpillar, Inc., Respondent-Respondent.
    Court of Appeals

      No. 00-0284.

      Submitted on briefs September 12, 2000.

    Decided January 11, 2001.

    2001 WI App 35
    (Also reported in 625 N.W.2d 338.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs oí James E. Doyle, attorney general, andE. Thomas Creeron, III, assistant attorney general.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Timothy C. Frautschi and Maureen A. McGinnity of Foley & Lardner of Milwaukee.
    Before Vergeront, Roggensack and Deininger, JJ.

      Petition to review denied.

   ROGGENSACK, J.

¶1. The Wisconsin Department of Revenue (DOR) appeals a circuit court judgment affirming the Wisconsin Tax Appeal Commission's interpretation of WlS. Stat. § 71.06(1) (1985-86) to enable the surviving corporation of a pre-1987 merger to offset net operating loss carry-forwards against current net operating income in accord with the treatment the Internal Revenue Service (IRS) affords under federal law. Because we conclude that WlS. Stat. § 71.26(4) (1987-88), the renumbered successor to § 71.06(1) (1985-86), permitted Caterpillar, Inc. to make the offsets of net operating loss carry-forwards which it claimed, we affirm the judgment of the circuit court.

BACKGROUND

¶ 2. This case reaches us on stipulated facts, which stipulation forms the factual basis for this opin-. ion. Caterpillar Tractor Co. was incorporated in the 1920's in California. In 1986, Caterpillar Tractor Co. changed its company name. Because it also wished to change its state of incorporation when it changed its name, it first incorporated a new entity, Caterpillar, Inc., in Delaware as a wholly owned subsidiary of the existing entity, Caterpillar Tractor Co. Caterpillar Tractor Co. then immediately merged into Caterpillar, Inc., effective May 8, 1986. There was no change in ownership at the time of the merger, as all shares of Caterpillar Tractor Co. common stock were converted into shares of Caterpillar, Inc., and the officers and directors of Caterpillar Tractor Co. continued as the officers and directors of Caterpillar, Inc. No distributions or dispositions of any property were made by reason of the reorganization, with Caterpillar, Inc. succeeding to all the assets, liabilities, rights, privileges and duties of those formerly held by Caterpillar Tractor Co., without limitation. Furthermore, Caterpillar, Inc. maintained Caterpillar Tractor Co.'s federal taxpayer identification number.

¶ 3. For federal income tax purposes, the merger of Caterpillar Tractor Co. into Caterpillar, Inc. was a non-taxable reorganization under IRC § 368(a)(1)(F), because it was defined by the IRS as a "mere change in identity, form, or place of organization of one corporation, however effected." Furthermore, under IRC § 381, Caterpillar, Inc. succeeded to all the tax attributes of Caterpillar Tractor Co.

¶ 4. In 1982, 1983 and 1984, Caterpillar Tractor Co. sustained Wisconsin net operating losses totaling $12,507,684. A portion of that was utilized in 1985, resulting in a net operating loss carry-forward to 1986 of $10,736,275. Caterpillar, Inc. filed Wisconsin corporate franchise returns for each tax year from 1986 through 1990. Pursuant to a DOR audit adjustment, the following offsets were claimed:

¶ 5. The DOR refused to accept the offsets for the years indicated above and issued assessments for additional franchise taxes it claimed were due. Caterpillar, Inc. appealed to the commission, which agreed with the DOR for 1986 but agreed with Caterpillar, Inc. for 1987 through 1990. The DOR appealed those determinations adverse to it, contending that the statutory revisions that became effective in 1987 were unavailable because the merger that resulted in Caterpillar, Inc. having the assets, liabilities and attributes of Caterpillar Tractor Co. occurred in 1986. The circuit court affirmed the commission, and the DOR again appealed.

DISCUSSION

Standard of Review.

¶ 6. This case involves the construction of a statute by an administrative agency, where we review the decision of the commission, not that of the circuit court. Advance Pipe & Supply Co. v. DOR, 128 Wis. 2d 431, 434, 383 N.W.2d 502, 503 (Ct. App. 1986). Construction of a statute and its application to undisputed or stipulated facts are questions of law. Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315, 317 (Ct. App. 1997). On review of an administrative agency's decision, we are not bound by its conclusions of law. Currie v. DILHR, 210 Wis. 2d 380, 387, 565 N.W.2d 253, 257 (Ct. App. 1997). However, we may defer to the commission's legal conclusions. Id. The supreme court has established when deference to an agency's legal conclusion is warranted and how much deference reviewing courts should give. UFE, Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57, 61 (1996). An agency's interpretation or application of a statute may be accorded great weight deference, due weight deference, or de novo review. Id. We will accord great weight deference only when all four of the following requirements are met: "(1) the agency was charged by the legislature with the duty of administering the statute; (2) . . . the interpretation of the agency is one of long-standing; (3)... the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) . . . the agency's interpretation will provide uniformity and consistency in the application of the statute." Id. (citing Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98, 102 (1995)). Under the great weight standard, "a court will uphold an agency's reasonable interpretation that is not contrary to the clear meaning of the statute, even if the court feels that an alternative interpretation is more reasonable." UFE, 201 Wis. 2d at 287, 548 N.W.2d at 62.

¶ 7. We will accord due weight deference when the "agency has some experience in an area, but has not developed the expertise which necessarily places it in a better position to make judgments regarding the interpretation of the statute than a court." Id. at 286, 548 N.W.2d at 62. The deference allowed an administrative agency under due weight review is accorded largely because the legislature has charged the agency with the enforcement of the statute in question. Id. Under this standard, we will not overturn a reasonable agency decision that furthers the purpose of the statute unless we determine that there is a more reasonable interpretation under the applicable facts than that made by the agency. Id. at 286-87, 548 N.W.2d at 62. Finally, we will apply de novo review to an agency's legal conclusion if any one of the following is true: (1) the legal issue is one of first impression; (2) there is no evidence of any special agency expertise or experience in deciding the legal issue presented; or (3) the agency's position on the legal issue has been so inconsistent as to provide no real guidance. Coutts v. Wisconsin Ret. Bd., 209 Wis. 2d 655, 664, 562 N.W.2d 917, 921 (1997). However, we give no deference to an agency's interpretation of a statute if the statute is clear and plain on its face because any deviation from the plain meaning of the statute would be inherently unreasonable. Lincoln Sav. Bank, S.A. v. DOR, 215 Wis. 2d 430, 443, 573 N.W.2d 522, 528 (1998). Because we conclude that Wis. STAT. § 71.26(4) is clear and plain on its face, we review the commission's interpretation of that statute de novo.

Net Business Loss Carry-Forwards.

¶ 8. It is undisputed that, through the merger, Caterpillar Tractor Co. changed its name and state of incorporation and that the change was a non-taxable reorganization under IRC § 368(a)(1)(F). Because under this reorganization Caterpillar, Inc. succeeded to Caterpillar Tractor Co.'s tax attributes for federal tax purposes, it also succeeded to Caterpillar Tractor Co.'s net operating loss carryovers under federal law. It is also stipulated that, even though these net operating losses were generated before 1987, the DOR would permit Caterpillar, Inc. to utilize them rather than objecting if the merger had occurred in 1987. Therefore, the question we must resolve is whether the legislature intended that, for the years 1987 forward, Caterpillar, Inc. would receive the same treatment for its net operating loss carry-forwards under state law as the parties agree it was entitled to receive under federal law.

¶ 9. To answer the question presented, we must determine the legislature's intent in federalizing the corporate franchise tax structure with regard to net operating loss carry-forwards. We begin with the words the legislature chose to employ. Truttschel, 208 Wis. 2d at 365, 560 N.W.2d at 317. If the words chosen plainly and clearly set forth that intent, our inquiry ends, and we must apply those words to the facts of the case. Id. It is only when the language used in the statute is capable of more than one meaning that we may go beyond the face of the statute. Id. at 365-66, 560 N.W.2d at 317.

¶ 10. Wisconsin Stat. § 71.26 (1987-88), which is an amendment of § 71.06 accomplished by 1987 Wis. Act 27, § 1278(b) and renumbered by 1987 Wis. Act 312, § 2, is central to this appeal. It states in relevant part:

(3) MODIFICATIONS. The income of a corporation shall be computed under the internal revenue code ... as modified in the following ways:
(n) Sections 381, 382 and 383 (relating to carry-overs in certain corporate acquisitions) are modified so that they apply to losses under sub. (4) and credits under sec. 71.28(ldi), (IdL) and (3) to (5) instead of to federal credits and federal net operating losses.
(4) Net BUSINESS LOSS CARRY-FORWARD. A corporation . . . may offset against its Wisconsin net business income any Wisconsin net business loss sustained in any of the next 15 preceding taxable years to the extent not offset by other items of Wisconsin income in the loss year and by Wisconsin net business income of any year between the loss year and the income year for which an offset is claimed. For purposes of this subsection Wisconsin net business income or loss shall consist of all the income attributable to the operation of a trade or business in this state, less the business expenses allowed as deductions in computing net income.

In addition, 1987 Wis. Act 27, § 3203(47)(y) provides in part:

Federalizing the corporate tax; general issues. The treatment of . . . [numerous sections including] 71.02(1)... (bg)... of the statutes and the repeal of sec. 71.04 of the statutes first apply to taxable year 1987.

The DOR relies on the language "the statutes first apply to taxable year 1987" to support its contention that the statutory changes do not apply to loss carry-forwards accumulated through pre-1987 mergers. Caterpillar, Inc. counters that the quoted phrase simply establishes when the corporation may use net operating loss carry-forwards on its state return in the same manner as it uses them on its federal return.

¶ 11. The supreme court examined the federalization of Wisconsin's corporate franchise tax structure in regard to a different, but analogous, provision in Lincoln Savings Bank. There, the supreme court addressed whether federalization permitted Lincoln to subtract its pre-1962 balance of bad debt reserves for federal tax purposes, which reserves had been accumulated before Lincoln was subject to the Wisconsin franchise tax. Lincoln Sav. Bank, 215 Wis. 2d at 440, 573 N.W.2d at 526. In concluding that the legislature intended to harmonize state corporate franchise tax determinations with federal taxable income, the supreme court recognized that Wisconsin tax law had been less favorable to the taxpayer than the Internal Revenue Code and that the legislature's intent to change that was evident. Id. at 437, 573 N.W.2d at 525. It then put aside the DOR's interpretation of a rule that would have added an additional requirement for bad debts so they could be used "only for years in which a taxpayer was subject to a Wisconsin franchise tax." Id. at 446, 573 N.W.2d at 529. Central to the court's reasoning was its acknowledgement that the overall requirements of federalization which the legislature had sought necessitated an outcome that made the tax treatment under state law consistent with that afforded under federal law. Id. at 445, 573 N.W.2d at 528.

¶ 12. The creation of WlS. STAT. § 71.26 and other statutory amendments enacted in 1987 that bear on this case are part of the same federalization of Wisconsin's corporate franchise tax structure examined in Lincoln Savings Bank. One of the mechanisms used in federalization was to redefine "net income" as gross income computed under the IRC, with certain modifications. Wisconsin Stat. § 7l.26(2)(a) and (3) (1987-88). One of those modifications was the replacement of the federal net operating loss deduction in IRC § 172 with Wisconsin's business loss carry-forward provision, § 71.26(4), for computation of state taxes. The law also modified for Wisconsin taxpayers the provisions of IRC § 381 to permit offset of losses under § 71.26(4) instead of using only federal net operating losses. Wisconsin Stat. § 71.26(3)(i) and (n) (1989-90). In so doing, Wisconsin essentially adopted IRC § 381 for use by corporations in tax years beginning with 1987. Prior to this amendment, the only way that a corporate taxpayer in Wisconsin could have used net operating losses incurred by a predecessor corporation was to satisfy the "identical taxpayer" rule established in Fall River Canning Co. v. Wisconsin Dep't of Taxation, 3 Wis. 2d 632, 89 N.W.2d 203 (1958).

¶ 13. Federalization was a legislative effort to change the law from that set out in Fall River and its progeny. Furthermore, we conclude the legislature did so without any statutory ambiguity. We recognize that the commission concluded that § 3203(47)(y) was ambiguous. However, it did so based on what the legislature did not say, not on the plain words chosen. Creating an ambiguity in the federalization of Wisconsin's corporate franchise tax laws by adding words to those chosen by the legislature was specifically rejected by the supreme court in Lincoln Savings Bank:

[T]o read in the limitation the DOR proposes would frustrate the express legislative goal of equalizing the differences between items of income, loss, or deduction for Wisconsin and federal corporate income tax liability. To judicially insert such a limitation would impermissibly rewrite an already plain legislative rule.

Lincoln Sav. Bank, 215 Wis. 2d at 446, 573 N.W.2d at 529. We reject that approach here as well. Furthermore, it makes little sense that the legislature would have enacted a comprehensive statutory scheme to effect federalization and have precluded the use of net operating loss carry-forwards in a merger of this type. We agree with Caterpillar, Inc. that, just because it did not have the right to deduct these losses in the year of the merger, it does not follow that these losses were extinguished. Rather, they did not begin to produce a valuable Wisconsin tax benefit until federalization of the Wisconsin corporate franchise tax structure was effective in 1987. Accordingly, we affirm the decision of the circuit court which had affirmed the commission.

CONCLUSION

¶ 14. Because we conclude that WlS. Stat. § 71.26(4) (1987-88), the renumbered successor to § 71.06(1) (1985-86), permitted Caterpillar, Inc. to make the offsets of net operating loss carry-forwards which it claims, we affirm the judgment of the circuit court.

By the Court. — Judgment affirmed.

       26 U.S.C. § 368(a)(1)(F).

       26 U.S.C. §381.

       Here, there is a conflict between the DOR and the commission. Because the commission is the final administrative authority that reviews the decisions of the DOR, any deference that might be due to the decision of an administrative agency is due to the commission, not to the DOR. William Wrigley, Jr., Co. v. DOR, 176 Wis. 2d 795, 801, 500 N.W.2d 667, 670 (1993).

       Prior to the statutory revisions of 1987, Wisconsin's business loss carry-forward provisions were contained in WlS. Stat. § 71.06 (1985-86). It provided:
      Corporation business loss carry forward. (1) A corporation may offset against its Wisconsin net business income any Wisconsin net business loss sustained in any of the next 15 preceding income years to the extent not offset by other items of Wisconsin income in the loss year and by Wisconsin net business income of any year between the loss year and the income year for which an offset is claimed. For purposes of this section Wisconsin net business income or loss shall consist of all the income attributable to the operation of a trade or business in this state, less the business expenses allowed as deductions under s. 71.04.

       The commission stated, "We conclude that the language of section 3203(47)(y) is ambiguous since it does not completely address the initial applicability of the federalization of IRC section 381. Specifically, the language of section 3203(47)(y) does not tell us whether the federal treatment is limited to corporate reorganizations in 1987 or thereafter."