COURT OF APPEALS DECISION DATED AND FILED April 24, 2002 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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Cir. Ct. No.
99-TR-5377 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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Village of Fontana, Plaintiff-Respondent, v. Gary M. Zamecnik, Defendant-Appellant. |
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APPEAL from an order of the circuit court for Walworth County: MICHAEL S. GIBBS, Judge. Affirmed.
¶1 SNYDER, J.[1] Gary M. Zamecnik contends that the trial court misused its discretion in refusing to reopen the underlying operating a motor vehicle while under the influence of intoxicants (OWI) case against him. We disagree and affirm the order of the trial court.
FACTS[2]
¶2 On September 26, 1999, Zamecnik was issued an OWI citation. He retained Attorney John Miller Carroll to represent him and signed an authorization permitting Miller Carroll to appear on his behalf. Miller Carroll was authorized to enter into a plea agreement if Zamecnik consented after consultation.
¶3 On February 7, 2000, a stipulation and order was filed with the trial court stating that Zamecnik agreed to enter a plea of no contest to the OWI charge with a six-month suspension of his driver’s license and an alcohol and drug assessment; the remaining refusal charge would be dismissed. However, Zamecnik claimed that he never gave Miller Carroll permission to enter into this plea agreement nor was he consulted about the agreement. Zamecnik admitted that he was notified of this plea agreement by correspondence from Miller Carroll dated February 14, 2000.
¶4 As a result of this plea agreement, Zamecnik’s Illinois driving privileges were revoked; he was notified of this revocation by letter in April 2000. At that time, Zamecnik was not working and was on disability. In June 2000, Zamecnik was seriously injured in a car accident.
¶5 On July 2, 2001, Zamecnik filed a motion to reopen this case, pursuant to Wis. Stat. § 346.65(2g)(b), alleging that he was never consulted about nor made aware of the implications of the plea agreement. The trial court denied this motion and Zamecnik appeals.
DISCUSSION
¶6 Although in the trial court Zamecnik argued that his motion was brought pursuant to Wis. Stat. § 346.65(2g)(b), he abandons that argument on appeal and now maintains that the motion is brought pursuant to Wis. Stat. § 806.07(1)(h). We address this issue only because opposing counsel cited to § 806.07 at the October 3, 2001 motion hearing before the trial court.
¶7 Wisconsin Stat. § 806.07 addresses relief from judgment or order and states, in relevant part:
(1) On motion and upon such terms
as are just, the court, subject to subs. (2) and (3), may relieve a party or
legal representative from a judgment, order or stipulation for the following
reasons:
....
(h) Any other reasons justifying relief
from the operation of the judgment.
(2) The motion shall be made
within a reasonable time, and, if based on sub. (1)(a) or (c), not more than
one year after the judgment was entered or the order or stipulation was made. A
motion based on sub. (1)(b) shall be made within the time provided in s.
805.16. A motion under this section
does not affect the finality of a judgment or suspend its operation. This
section does not limit the power of a court to entertain an independent action
to relieve a party from judgment, order, or proceeding, or to set aside a
judgment for fraud on the court.
A circuit court’s order denying a motion for relief under
§ 806.07 will not be reversed on appeal unless there has been an erroneous
exercise of discretion. State ex
rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 541, 363 N.W.2d 419
(1985). An appellate court will not
find an erroneous exercise of discretion if the record shows that the circuit
court exercised its discretion and that there is a reasonable basis for the
court’s determination. Id.
at 542. The term “discretion”
contemplates a process of reasoning which depends on facts that are in the
record or are reasonably derived by inference from the record and yields a
conclusion based on logic and founded on proper legal standards. Id.
¶8 In
exercising its discretion, the trial court should consider factors relevant to
the competing interests of finality of judgments and relief from unjust
judgments, including whether the judgment was the result of the conscientious,
deliberate and well-informed choice of the claimant, whether the claimant
received the effective assistance of counsel, whether relief is sought from a
judgment in which there has been no judicial consideration of the merits and
the interest of deciding the particular case on the merits outweighs the
finality of judgments, whether there is a meritorious defense to the claim and
whether there are intervening circumstances making it inequitable to grant
relief. Id. at
552-53.
¶9 Zamecnik
argues that his motion to reopen was filed within a reasonable time period,
pursuant to Wis. Stat. § 806.07(2),
and the trial court did not undertake any examination consistent with the
exercise of discretion but “simply made a determination that it felt too much
time had elapsed to reopen the judgment.”
We disagree that the trial court erroneously exercised its discretion in
denying Zamecnik’s motion to reopen this matter. In denying Zamecnik’s motion, the trial court stated:
Well,
first of all, in looking at the history of the case, there was a refusal. His driving privileges would have been
revoked for one year as a result of the refusal.
There was a motion to get the refusal
reopened, and that was denied. And then
Mr. Carroll, acting under an authorization, made an agreement which reduced his
driver’s license revocation to a six-month suspension. He would have been revoked for a year. He would have had -- that would [have]
transferred to a revocation down in Illinois under any circumstances.
But being that as it may ... you
authorized him to act for you. He did
act for you. He reduced your period
without a license from one year to six months.
He notified you.
Now, I’m not saying that everything he
did here was perfect by any means, and you may have every reason to be angry
with what -- with what took place here, but he notified you on February 14th.
You didn’t need an attorney at that point to write a letter to the Court to
say, hey, whoa, wait a minute. This is
not my agreement. I want to come back
in. You don’t need a lawyer to do that. But you sat there and did nothing. You slept on your rights, especially after
being alerted by the State of Illinois in April of 2000 that your driver’s
license had been revoked for a year.
Then you want me to feel sorry for you because in violation of that
order and the Department of Motor Vehicle revocation, you went out and drove
and got in an accident and you were revoked.
....
You sat on this for fifteen months. That’s too long. That’s beyond every statute.
There is no basis for reopening this.
The motion to reopen is denied.
¶10 The trial court acknowledged that Miller Carroll’s behavior was
less than perfect but considered that Zamecnik authorized Miller Carroll to
appear and act on his behalf, that Miller Carroll negotiated a lesser penalty
for him and that Miller Carroll notified him of the arrangement in February
2000. The trial court observed that
despite Miller Carroll’s notification and the notice from the Illinois
Department of Motor Vehicles, Zamecnik still did nothing to contact the court
to contest the agreement or reopen the case.
The trial court noted that despite being notified of the license
suspension, Zamecnik “went
out and drove and got in an accident” and waited fifteen months before
petitioning the court to reopen the matter.
CONCLUSION
¶11 We conclude that the trial court factored the M.L.B.
criteria into its decision.
Consequently, the court did not erroneously exercise its discretion in
denying Zamecnik’s motion for relief from the OWI judgment. We
therefore affirm the order of the trial court.
By the Court.—Order
affirmed.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge
pursuant to Wis. Stat. § 752.31(2)(c)
(1999-2000). All references to the
Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
[2] Zamecnik has not provided one single
citation to the record to corroborate the facts set forth in his brief. Such a failure is a clear violation of Wis. Stat. Rule 809.19(1)(d) and (3) of
the rules of appellate procedure, which require the appellant to set out facts
“relevant to the issues presented with appropriate references to the
record.” An appellate court is
improperly burdened where briefs fail to cite to the record. Meyer v. Fronimades, 2 Wis. 2d
89, 93-94, 86 N.W.2d 25 (1957).
This court may impose an appropriate penalty upon a party or counsel for
a rule violation. See Wis. Stat. Rule 809.83(2).