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Supreme Court accepts three new cases

Madison, Wisconsin - March 25, 2009

The Wisconsin Supreme Court has voted to accept three new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals' opinions/certification memos available online for the newly accepted cases are hyperlinked.

2007AP795 State v. Allen
This criminal case examines post-conviction motions and procedures under Wis. Stat. § 974.06 in light of case law and the Sixth Amendment to the U.S. Constitution. More specifically, the Supreme Court is asked whether it is appropriate for circuit courts to rule, without additional findings, that a failure to file a response to a no-merit report constitutes a waiver of all subsequent claims of error.

Some Background: Aaron Antonio Allen is serving a 37-year prison sentence arising from his 1999 conviction following a jury trial of one count of armed robbery and one count of felon in possession of a firearm committed when he was out on parole from his sentence for a felony murder.

Allen has asked the Supreme Court to review if his failure to respond to a “no-merit report” filed by his appointed appellate counsel pursuant to Wis. Stat. § 809.32 results in waiver. A no-merit report must be filed with a court if an appointed attorney concludes that a direct appeal on behalf of the person would be frivolous and without any arguable merit. In this case, the issue is whether Allen is barred from bringing a motion on the ground that Allen failed to raise his arguments in his pro se response to his appointed counsel’s no-merit report.

In 2007, Allen filed a motion for post-conviction relief under § 974.06, giving rise to this appeal. He argued counsel had been ineffective “for failing to file a post-conviction motion alleging that pretrial counsel was ineffective when he failed to file any motions to suppress the unlawful arrest, the illegal lineup, and the prosecution’s use of defendant’s alleged guilt.”

The circuit court denied his motion as procedurally barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), noting Allen had not raised his issues in a response to the no merit report. Allen appealed, and the Court of Appeals affirmed.

The Court of Appeals held that because Allen offered no reason why he was unable to raise his issues in a response to the no merit report, he failed to show a sufficient reason to overcome the "Escalona-Naranjo/Tillman bar." See also State v. Tillman, 2005 WI App 71, ¶ ¶ 19-20, 281 Wis. 2d 157, 696 N.W. 2d 574. Allen contends defendants are not informed, “at or before the filing of no-merit reports, that their failure to file a response or failure to raise a particular issue at that time constitutes a waiver of claims that went unaddressed.”

Allen’s pro se petition for review was initially considered by the Supreme Court in June 2008, and the Court ordered the state to file a "supplemental response," which the state did on July 14, 2008. Because the state had responded that the law is unclear, the Court appointed pro bono appellate counsel to address certain issues.

The state contends that the law is unclear as to the requirement of a response in a no-merit proceeding to avoid application of the Escalona bar. The state also argues that guidance is needed regarding the application of the “sufficient reason” standard of § 974.06 and Escalona. The state asks the Supreme Court to consider what additional showing, if any, is necessary to constitute “sufficient reason” authorizing a defendant to raise a claim.

A decision by the Supreme Court could clarify apparently conflicting Court of Appeals’ decisions and the application of the procedural bar to no merit proceedings and harmonize the holdings of Fortier and Tillman. See State v. Fortier, 2006 WI App 11, ¶19 289 Wis. 2d 179, 709 N.W.2d 893. From Milwaukee County.

2007AP2651 Pawlowski v. American Family and Nancy L. Seefeldt
In this strict liability dog-bite case, the Supreme Court has been asked to review statutes and case law to help clarify statutory keeper provisions of Wis. Stat. § 174.02.

Some background: After discussions among mutual friends, Walter Waterman and his two dogs moved into Nancy L. Seefeldt’s residence in June 2003, after Waterman lost his job and needed a place to live that allowed dogs. Seefeldt’s residence had a large backyard, and she already had two dogs of her own.

On Oct. 26, 2003, Seefeldt was home when Waterman opened the front door to go to the grocery store. The dogs immediately charged across the street with Waterman chasing behind and bit Colleen Pawlowski three times, resulting in 16 puncture wounds and soft tissue damage. Seefeldt testified in her deposition that Waterman always put the dogs in his car and took them with him when he left the house. She also testified she was unaware of the dog bite until after Waterman had returned from the grocery store.

Waterman subsequently moved out of Seefeldt’s home with his two dogs and could not be located for purposes of this litigation. Pawlowski and her husband sued Seefeldt and her insurance carrier, American Family Mutual Insurance Co.

Seefeldt and American Family moved for summary judgment on the grounds the Pawlowskis had failed to state a claim upon which relief could be granted because Seefeldt was not the “keeper” of the dogs at the time of the incident and was not a statutory owner subject to liability under § 174.02.

The trial court granted summary judgment for the Seefeldts and American Family, concluding that at the moment the dog bit Pawlowski, the dog’s legal owner had control of the animal and thus Seefeldt was not a statutory keeper. The Court of Appeals reversed, concluding Seefeldt was a keeper under the statute, and that both a legal owner and statutory keeper can be simultaneously liable.

The Court of Appeals reasoned by permitting the dogs to reside at her home over a period of months, Seefeldt provided the dogs with both shelter and protection on an ongoing basis and therefore was a keeper within the meaning of the statute.

In asking the Supreme Court to review the case, Seefeldt and American Family note it is not uncommon for a dog owner to reside with other individuals. Specifically, they ask the Court to review if under § 174.02, Seefeldt was a keeper of the dog at the time of the injury and whether public policy is contrary to the imposition of liability on Seefeldt.

The Pawlowskis contend the goal of the statute is to protect innocent third parties from injuries caused by a dog and the only way to do that is to place the responsibility on the person or persons who have control over the dog. From Winnebago County.

2008AP1011-CR State v. Smith
In this case, the Supreme Court is asked to review the constitutionality of requiring a person convicted of a crime with no sexual component to register as a sex offender.

Some background: In 2001, James W. Smith was convicted of false imprisonment of a minor victim as party to a crime. There is no dispute that the crime did not have any sexual component. The record indicates that Smith and other individuals falsely imprisoned the victim and threatened him with a gun in a dispute over a drug debt.

Smith pleaded no contest to false imprisonment and theft, and he was required under Wis. Stat. § 301.45 to register as a sex offender.

In 2005, Smith was charged with failing to provide an annual update and respond to written requests from the state Department of Corrections. Smith moved to dismiss the charges, claiming § 301.45 is unconstitutional because it is overbroad, denied equal protection, and violated substantive due process because it lacked a rational basis when applied to his circumstances.

Smith’s motion was denied, and he pled guilty. He was sentenced to one year initial confinement and one year extended supervision. Smith appealed, and the Court of Appeals affirmed.

The Court of Appeals said due process protects against government action that either shocks the conscience or interferes with rights implicit in the concept of ordered liberty. The Court of Appeals said Smith only raised an “as applied,” and not facial challenge to the statute. He had the burden of showing beyond a reasonable doubt that § 301.45 as applied to him was unconstitutional and Smith did not meet that burden, the Court of Appeals concluded.

Smith raises questions of due process and equal protection. He argues being labeled a sex offender damages his reputation and restricts his right to privacy, his choice of residency, and employment. He notes that many local jurisdictions are creating or have already created restrictions on a person’s ability to reside in certain locations if they are registered as a sex offender.

The state says Smith has not identified a fundamental liberty interest being infringed upon. The Court of Appeals correctly recognized that including false imprisonment of a minor as a sex offender furthers the goal of protecting children from violence, the state contends. In addition, the state argues a sex offense is defined under § 301.45 to include the crime of false imprisonment of a minor.

A decision by the Supreme Court could clarify the law in this area. From Brown County.

Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state’s law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the Court’s discretion (see Wis. Stat. (rule) § 809.62). Except where indicated, these cases came to the Supreme Court via petition for review by the party who lost in the lower court.

2008AP79-CR State v. Jerdee

2008AP597-CR State v. Nava
2008AP719-CR State v. Walker

2008AP936 Marquardt v. Smetana

2007AP2765 Clark v. Thurmer
2008AP571-CR State v. Nelson
2008XX1371-CR State v. Avidan

2007AP2467 Allen v. Dodge Co. Dist. Attys. Office - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

Eau Claire
2007AP1533-CRNM State v. Vang

Fond du Lac
2007AP2622 Town of Fond du Lac v. Schmitz

2007AP845-CR State v. Eaglefeathers - Chief Justice Shirley S. Abrahamson did not participate.

2007AP1170-CR State v. Williams
2007AP1558-CR State v. Lyons
2007AP2439-CR State v. Lee
2008AP599 State v. Flowers

La Crosse
2007AP2155 State v. Williams

2007AP1483 Mason v. ACE American - Justice Patience Drake Roggensack and Justice Annette Kingsland Ziegler dissent.

2007AP1475-CR State v. Egerson
2008AP450-CR State v. VanDuyse

2007AP2778 Wis. Glacier Springs v. Howe
2009AP1253 Klawitter v. Howe

2005AP2680/2006AP1410 Onischuk v. Johnson Controls
2007AP1700-CR State v. Moreno
2007AP1809-CRNM State v. Rawls
2007AP2333 Munro v. Golden Rule
2007AP2341/2008AP583 Shank Hall v. Horowitz
2007AP2430-CR State v. Redmond
2007AP2432-CR State v. Hicks
2007AP2458-CR State v. Greer
2007AP2721-CR State v. Payne
2007AP2794-CR State v. Young
2007AP2879-CR/2008AP268-CR State v. Brown
2007AP2974-CR State v. Harris
2008AP80-CR State v. Cesarez
2008AP87 State v. Townsend
2008AP369 Avina v. LIRC
2008AP642-CR State v. Johnson
2008AP790-CR State v. Starks
2008AP938-CR State v. Morgan
2008AP1211/12-CRNM State v. Schmeisser
2008AP2354-W Smith v. Cir. Ct. for Milw. Co.
2008AP2639/40-W; Griffin v. Cir. Ct. for Milwaukee Co.
2008XX1364-CR Oconto 2008AP807 Nischke v. Aetna

2008AP423 Fox v. Freedman Pierce
2008AP830 State v. Hipler Portage
2007AP1757 State v. Poblitz
2007AP2130-CR State v. Jahnke Racine
2006AP2542 State v. Price
2007AP2669-CR State v. Martinez

2008AP212/13-CR State v. Tucker

2008AP1991-W Cortez v. Pollard Walworth
2007AP1785-CR State v. Swope Washington
2007AP2916-CR State v. Schwigel
2008AP443-CRNM State v. Gonzalez-Castillo

2007AP2757 State v. Mertes
2008AP549-CR State v. Dallas
2009AP456-W Merkel v. Cir. Ct. for Waukesha Co.

2007AP1965 Lammers v. Frank - Justice N. Patrick Crooks did not participate.

2008AP8-CR State v. Lambouths

Tom Sheehan
Court Information Officer
(608) 261-6640

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