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Wisconsin Supreme Court accepts 10 new cases

Madison, Wisconsin - February 7, 2014

The Wisconsin Supreme Court has voted to accept 10 new cases and acted to deny review in a number of other cases. The case numbers, issues, and county of origin are listed below. The Court of Appeals' opinions for the newly accepted cases are hyperlinked where available.

2011AP1653-CR State v. Cummings
This case examines whether a defendant invoked his right to silence under Miranda v. Arizona, 384 U.S. 436 (1966) when, during the course of an interrogation, he told the police officer, "Well, then, take me to my cell." The defendant, Carlos A. Cummings, also contends his punishment of the maximum penalty for first-degree reckless injury as party to a crime was unduly harsh and that his trial counsel was ineffective.

Some background: Cummings was originally charged with being party to the crime of attempted first-degree intentional homicide. The criminal complaint alleged that he plotted with his lover to hire a cognitively impaired woman with an IQ in the 60s to shoot his lover's husband, drove the woman to a location where she shot the man in the head five times, then drove the woman away from the scene and hid the gun and bullets in his basement.

The complaint included statements the defendant made to police while in custody.

The entire exchange during which the defendant claimed to have invoked his right to silence was as follows:

Officer: . . . This is your opportunity to be honest with me, to cut through all the bullshit and be honest about what you know.
Cummings: I'm telling you. Officer: So why then do we got [the victim's wife] and [the shooter] telling us different?
Cummings: What are they telling you? Officer: I'm not telling ya! I'm not gonna fuckin' lay all my cards out in front of you Carlos and say, "This is everything I know!"
Cummings: Well, then, take me to my cell. Why waste your time? Ya know?
Officer: Cuz I'm hoping. . .
Cummings: If you got enough. . .
Officer: . . .to get the truth from ya.
Cummings: If you got enough to fucking charge me, well then, do it and I will say what I have to say, to whomever, when I plead innocent. And if they believe me, I get to go home, and if they don't. . .
Officer: If who believes you?
Cummings: . . .and if they don't, I get locked up.
Officer: And you're okay with that?
Cummings: No! I'm not okay with that! I don't want to be in that predicament, but right now, I'm under arrest. That's how I see it.

Cummings filed a suppression motion arguing that police had violated his Fifth Amendment rights by continuing his interrogation after he had invoked his right to silence. The circuit court ruled that most of the statements would be admissible. The defendant then entered a plea to a reduced charge of being party to the crime of first-degree reckless injury. Two counts of aiding a felon were read in.

At sentencing, the circuit court said it viewed the defendant as "the mastermind" of the murder plot, and it imposed a near maximum sentence of 14 years of initial confinement and 10 years of extended supervision. A post-conviction motion was denied, and the Court of Appeals affirmed.

The Court of Appeals agreed with the circuit court that the defendant's request to be taken to his cell was not an unequivocal invocation of his right to remain silent. The Court of Appeals said Cummings' statement was ambiguous and a more compelling interpretation is that he was merely attempting to obtain more information from the police about what his co-conspirators had been saying.

The Court of Appeals said if the statement is ambiguous it does not constitute an unequivocal invocation requiring police to immediately stop questioning the suspect.

Cummings contends the sentence was unduly harsh because the trial court failed to give adequate consideration to the defendant's alcohol or drug issues, mental health problems, and horrible childhood, and because the court refused to impose a risk reduction sentence. He also complained that his role in the offense did not justify a term of initial confinement that was twice as long as that given to the shooter. The Court of Appeals found none of those arguments persuasive.

The Court of Appeals said the record indicates that the circuit court did explicitly acknowledge the defendant's difficult childhood, attention disorder, and AODA issues, but the court also found the defendant was articulate and seemed to be capable of contributing to society if he were to put his abilities to good use rather than continuing to commit criminal offenses. From Portage County.

2012AP393-CR State v. Toliver
This case involves the appeal of a juvenile defendant who was convicted of first-degree reckless injury and attempted robbery with threat of force, both involving the use of a dangerous weapon. The Supreme Court examines two issues: · Which prevails: the general rule that a defect of subject matter jurisdiction may be raised at any time, or the convention that the Court of Appeals will not address an argument first raised in a reply brief? · Where a Wisconsin court fails to make the specific probable cause finding required by Wis. Stat. § 970.032, does this failure cause the court to lose subject matter jurisdiction over the criminal proceeding, necessitating that the juvenile defendant be discharged?

Some background: In April 2009, 16-year-old Cortez Lorenzo Toliver was charged with attempted first-degree intentional homicide and possession of a dangerous weapon by a person under 18. The criminal complaint alleged that the victim had been shooting dice with Toliver and won most of Toliver's money. Toliver told the victim he needed the money back. The victim refused. Toliver produced a handgun and "racked the slide," which manually loads the chamber and cocks a semi-automatic pistol. The victim told Toliver he could have the money. The victim hesitated for a moment and tried to run away. Toliver shot the victim in the middle of the back, and then fled the scene. The victim was permanently paralyzed from the waist down as a result of the shooting.

On May 7, 2009, Toliver appeared in Racine County Circuit Court for a preliminary hearing. Instead of finding probable cause that Toliver had attempted to commit first-degree homicide, the specific crime charged, the circuit court said, "I would note, there is probable cause to believe a felony has been committed." (emphasis added). Nevertheless, the circuit court bound over Toliver, scheduled a pretrial conference, and returned Toliver to custody, having already set a $50,000 bond.

Toliver subsequently filed a petition for reverse waiver accompanied by a motion to reopen the May 7 preliminary hearing. Toliver argued that the judge presiding on May 7 had failed to make the specific probable cause determination required by § 970.032(1) and that, as a result, the court lacked jurisdiction to proceed.

In November of 2009, following judicial rotation, a new judge held a hearing on Toliver's motion and reverse waiver petition. At the hearing, the new judge reviewed the transcript of the May 7 hearing and concluded that the first judge had found the requisite probable cause. Toliver's motion to reopen the preliminary hearing was denied, as was the petition for reverse waiver.

Toliver subsequently pled guilty to one count of first-degree reckless injury and one count of robbery with threat of force. On July 7, 2011, Toliver was sentenced to 27 years of initial confinement and 12 1/2 years of extended supervision.

Toliver filed a post-conviction motion for sentence relief, which was denied. He then appealed, arguing that the circuit court erroneously exercised its discretion in denying his request for reverse waiver and also erroneously exercised its discretion at sentencing. The Court of Appeals rejected Toliver's arguments regarding sentencing and reverse waiver.

The state argued that Toliver had waived his argument about the denial of the reverse waiver petition by entering a guilty plea. However, the state noted the general rule that a knowing, voluntary, and intelligent entry of a guilty plea waives all non-jurisdictional defects preceding the entry of a plea does not extend to defects of subject matter jurisdiction. The state also conceded that the circuit court, at the May 7, 2009 preliminary hearing, failed to make the finding required by § 970.032(1). The state said, "Nevertheless, using the record before it, the circuit court later expressly determined the court had previously found probable cause to believe Toliver had committed attempted first-degree intentional homicide. The state argues such a failure does not amount to a loss of jurisdiction.

The state argues that the defendant did not properly raise his issues in the Court of Appeals because it was not until his reply brief that he asserted the circuit court was without subject matter jurisdiction over the case. The state says the Court of Appeals appropriately applied the well-established rule that a party is not permitted to raise an argument for the first time on appeal.

Toliver argued that the defect identified in the state's brief meant that the circuit court had lost subject matter jurisdiction to proceed with the reverse waiver proceeding in the first place and that this was a defect of subject matter jurisdiction that had not been waived by the guilty plea. Toliver argued that § 970.320(1) and this court's decision in State v. Kleser, 2010 WI 88, 328 Wis. 2d 42, 786 N.W.2d 144 required the circuit court to discharge Toliver with further proceedings, if any, to be initiated in juvenile court.

He says the trial court's initial subject matter jurisdiction was limited to hearing and determining whether specific probable cause existed. He says when the circuit court did not make that specific finding at the preliminary hearing, subject matter jurisdiction was lost. From Racine County.

2012AP520-CR State v. Smith
This case examines whether police violated a suspect's right to remain silent under Miranda v. Arizona, 384 U.S. 436 (1966), during a custodial interrogation.

The Supreme Court reviews a Court of Appeals opinion affirming a circuit court ruling that police did not violate Adrean L. Smith's Miranda rights when police continued to question him after he said: "I don't know nothing about this stuff, so I don't want to talk about this."

Some background: Smith was charged with 18 felonies arising out of a series of armed robberies. While a detective was investigating the robberies, the detective conducted a custodial interrogation of the defendant. The detective advised the defendant of his Miranda rights, and the defendant waived them. As part of the interrogation, the detective asked the defendant about a stolen van, which prompted Smith's comment. The detective continued the interview and Smith later gave incriminating statements, admitting to his involvement in a series of robberies, burglaries, and shootings.

Here's the relevant exchange:

Mr. Smith: See, I don't want to talk about, I don't want to talk about this. I don't know nothing about this.
Detective: Okay.
Mr. Smith: I don't know nothing. See, look, I'm talking about this van. I don't know nothing about no van. What's the other thing? What was the other thing that this is about?
Detective: Okay.
Mr. Smith: I don't even want to talk about – I don't know nothing about this, see. I'm talking about this van. This stolen van. I don't know nothing about this stuff. So, I don't want to talk about this.
Detective: I've got a right to ask you about it.

Smith unsuccessfully moved to suppress the statements he had made during the custodial interrogation, saying his statement amounted to an unambiguous assertion of his right to remain silent. Following denial of the suppression motion, Smith pled guilty to four charges. The remaining charges were read-in for sentencing purposes, and he was sentenced to 25 years of initial confinement and 10 years of extended supervision.

The Court of Appeals noted that a suspect must unequivocally invoke his right to remain silent before police are required to stop an interview or clarify equivocal remarks the suspect might have made. It noted police may continue an interrogation if a defendant validly waives his right to remain silent and later initiates further conversation. It pointed out that that after the defendant told the detective he did not "want to talk about this," he nonetheless kept talking. The Court of Appeals reasoned the defendant's continued conversation indicated not that the defendant wanted to stop talking about everything but that he did not want to discuss a stolen van about which he claimed to have no information. The Court of Appeals noted that refusals to answer specific questions do not amount to an assertion of an overall right to remain silent:

"A suspect must unequivocally invoke his or her right to remain silent before police are required either to stop an interview or to clarify equivocal remarks by the suspect." [I], 2007 WI App 242, ¶26, 306 Wis. 2d at 434-435, 742 N.W.2d at 554. That is, a suspect "must articulate his or her desire to remain silent or cut off questioning 'sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be an invocation of the right to remain silent." I, 203 Wis. 2d 66, 78, 522 N.W.2d 428, 533 (Ct. App. 1996).

Smith maintains that he did in fact make an unequivocal invocation of right to remain silent and that the detective violated that right by continuing to question him. From Milwaukee County.

2012AP2185-CR State v. Hunt
This case examines whether a trial court erred in preventing a witness from testifying that he did not send the defendant a sexually explicit video clip that resulted in the defendant being convicted of causing a child younger than 13 to view sexually explicit conduct on his cell phone. The Supreme Court also considers if the trial court erred, whether the error harmless.

Some background: James R. Hunt was convicted of causing an 11-year-old girl to view sexually explicit conduct. The girl testified at trial that when she was 11 years old, the defendant had shown her three images on his cell phone: a video of a man and woman having sexual intercourse and two other images that the trial court concluded at the preliminary hearing were not sexually explicit.

The girl also testified that, when she was younger, Smith had put her hand on his penis. Smith testified at trial that he never showed the girl a video of a couple having intercourse, and that he never put her hand on his penis. He testified that the screensaver on his cell phone was a picture of a topless woman holding a deer rack and that the girl had seen that image. He also testified that, on the day the girl described as the day he had shown her a video of intercourse on his phone, he had received a text message with a picture of a herniated testicle from his friend Matthew Venske. The defendant testified the girl was standing next to him when he opened that image, and that she saw it.

Venske testified for the defense. He said he sent text messages to the defendant, including pictures. Venske testified he had sent the defendant a picture of a topless woman holding a deer head and had sent a picture of a herniated testicle. Defense counsel asked Venske if he had sent the defendant a video of sexual intercourse. The trial court disallowed the question. Outside the presence of the jury, the defense asserted Venske would testify he never sent a video of sexual intercourse to the defendant. The trial court found the source of the video was irrelevant.

The jury found the defendant not guilty of sexual assault but guilty of exposing a child under the age of 13 to sexually explicit conduct. In a post-conviction motion, the defendant argued he was denied his right to present a defense when the court excluded proffered testimony by Venske that he had not sent the defendant a video of a couple engaging in sexual intercourse. The motion also alleged that the defendant had been denied the effective assistance of counsel. The circuit court denied the motion. The Court of Appeals reversed and remanded.

The Court of Appeals said it was undisputed that the excluded testimony of Venske was relevant to the defense. It said the theory of defense was that the girl saw a text message from Venske, which was a picture of a herniated testicle, and that the girl embellished that event by saying the defendant also showed her a video of sexual intercourse. The Court of Appeals said Venske corroborated the defendant's testimony about the herniated testicle image but was prevented from testifying he never sent the defendant a video of sexual intercourse. The court reasoned the excluded testimony would have further corroborated the defendant's version of events. The Court of Appeals went on to conclude that the circuit court's error in excluding Venske's testimony that he did not send the defendant a video of sexual intercourse was not harmless. The court said the case clearly turned on the relative credibility of the girl and Hunt, and the jury had to decide which one of them was telling the truth. The Court of Appeals noted the state did not dispute that the circuit court erred in excluding Venske's testimony, but the state claimed the error was harmless because an investigating police officer testified that Venske had denied to them that he had sent the defendant a video of sexual intercourse.

The state argues that there are legitimate concerns about the correctness of the Court of Appeals' decision, which resulted in the reversal of a serious felony conviction. From Jefferson County.

2012AP2140 State v. Nelson
This sexual assault case examines whether Wisconsin case law provides that a criminal defendant is automatically entitled to a new trial if the circuit court prohibits the defendant from testifying in her own defense.

Some background: Angelica C. Nelson was 18 years old when she had sexual intercourse with a 14-year-old boy at school. The boy's mother testified that after friends told her about a rumor that Nelson had sex with her son, she asked Nelson in a text message whether the rumor was true. Nelson responded: "You're going to be mad at me; but, yes, I did." Nelson also indicated in a text to the victim's mother that it happened three times behind the school.  When D.M.'s mother told Nelson it was inappropriate, Nelson responded: "I know there's laws, but he's hot and I'm sorry." The victim's mother reported the incident to police.

Nelson admitted to police that she had sex with the boy three times and that she knew the boy was 14 years old. Nelson was charged and the case went to trial.

After the state rested its case, Nelson stated on the record at least three times that she wanted to testify on her own behalf. The circuit court asked for the substance of Nelson's proffered testimony. Nelson indicated she would not deny that she had sexual intercourse with the boy or that he was younger than sixteen years old—she merely wanted her "side to be heard."

The court ultimately prohibited Nelson from testifying. The court noted that it would be against counsel's advice and was "completely irrelevant" to the elements the state had to prove. The trial court concluded Nelson had not validly waived her privilege against self-incrimination and refused to allow her to take the stand.

The jury found Nelson guilty. The trial court withheld sentence and imposed five years' probation. Nelson's post-conviction motion for a new trial was denied. She appealed, and the Court of Appeals affirmed.

The state contends that even if the trial court violated Nelson's right to testify, that error is subject to a harmless-error analysis citing State v. Flynn, 190 Wis. 2d 31, 56, 527 N.W.2d 343 (Ct. App. 1994).

The Court of Appeals agreed with the state's argument that any error was harmless in light of the overwhelming evidence of Nelson's guilt. The Court of Appeals concluded, in part, that "a conviction will be upheld even in the face of a violation of a defendant's constitutional rights if, under the circumstances of the case, it can be shown beyond a reasonable doubt that a 'trial error' as opposed to a 'structural defect in the constitution of the trial mechanism,' did not contribute to the guilty verdict."

Nelson contends Flynn, a Court of Appeals' case, is distinguishable because Flynn claimed ineffective assistance of trial counsel deprived him of the right to testify, while Nelson claims the trial court deprived her of the right to testify.

A decision by the Supreme Court could clarify whether a harmless-error analysis applies to a circuit court's denial of a defendant's right to testify. From Eau Claire County.

2012AP2196 Weissman v. Tyson Prepared Foods
This wage claim case arises from a class action filed by six workers, including Jim Weissman, against their employer, Tyson Prepared Foods, Inc. (Tyson). Tyson operates a meat processing plant in Jefferson County. The employees contend they are entitled to compensation for the time spent putting on ("donning") and taking off ("doffing") sanitary and protective equipment and clothing and walking to work stations.

In reviewing the case, the Supreme Court examines the complicated interplay between the relevant regulations, case law, and state and federal law.

Some background: The circuit court entered summary judgment in favor of Tyson. The Court of Appeals reversed and remanded, ruling that the donning and doffing under the circumstances presented is compensable (subject to any potential "de minimis" argument that might be available to Tyson on remand).

Tyson appealed to the Supreme Court. The Court of Appeals said that Tyson's question is one of first impression in the Wisconsin courts: Whether pre- and post-shift donning and doffing of generic work clothing that is neither extensive in nature, nor unique to the specific task performed, is non-compensable time under Wisconsin Statute § 103.02 and the Wisconsin Administrative Code Section Department of Workforce Development 272.12, because such work clothing is not "integral" and "indispensable" to employees' principal work . .. activities.

As a company policy, Tyson requires plant employees to don and doff some combination of the following: hair nets; beard nets, if applicable; frocks ("like a coat with snaps in front"); vinyl gloves; vinyl sleeves; bump caps (lightweight hard hats); safety glasses; ear plugs; and "captive shoes" (i.e., shoes worn only in the plant and no place else) or rubber boots or rubbers over shoes, and in some cases steel toed shoes.

The frocks and bump caps are color coded by work area or by responsibility of the wearer. Certain of these items are worn at least in part to prevent contamination of food. Employees are not paid for at least some of the time they spend donning and doffing these items. Similarly, they are not paid for at least some of their time travelling on company property after donning and before doffing.

The employees argue that their "preparatory and concluding activities" of donning and doffing at either end of the work day, as well as the time they spend walking to and from work stations after donning or before doffing these items, should be counted as "integral parts" of "principal activities" under Wis. Admin. Code § DWD 272.12(2)(e), and therefore compensable.

The circuit court disagreed, concluding that, in the absence of Wisconsin precedent interpreting § DWD 272.12, the court should follow the definitions of activities "integral" to "principal activities" provided in some federal case law interpreting the Fair Labor Standards Act (FLSA), which requires that items donned and doffed be "unique and extensive."

The Court of Appeals reversed, concluding that "the donning and doffing of this equipment and clothing at the Tyson plant is required by Tyson in order for the employees to perform their principal activities, is closely related to those activities, and is indispensable to their performance."

The Court of Appeals was not persuaded by Tyson's claim that the court should follow certain federal court decisions interpreting the FLSA, noting that those decisions are not unanimous.

Tyson took the case to the Supreme Court. Tyson contends that the Court of Appeals' decision "substantially unsettles the law because it contravenes the plain text of the WIS. ADMIN CODE § DWD 272.12(2)(e), by failing to give effect to the plain meaning of the legally operative terms, 'integral,' and 'indispensable.'"

Tyson contends that as "a consequence of that flawed analysis, the Court of Appeals wrongly substituted a potentially limitless standard for compensable work in place of the understanding of the core term 'integral' used by many other courts in analyzing whether certain preliminary and postliminary activities are compensable."

A decision in this case is expected to have implications for many employers and employees statewide. From Jefferson County.

2012AP46-CR State v. Jenkins
This criminal case looks at how circuit courts should factor in a witness's credibility when a defendant alleges ineffective assistance due to an attorney's failure to call that witness to testify. The Supreme Court is being asked to examine in such instances the interplay of the rule that juries are the ultimate arbiters of witness credibility and the prejudice standard for ineffective assistance, which requires postconviction courts to assess whether the omitted evidence would undermine confidence in the trial's outcome.

Some background: There was a shooting on N. 38th Street in Milwaukee on March 23, 2007. A car driven by Anthony Weaver and Toy Kimber ran out of gas in the 2100 block of that street. They exited the vehicle and began talking to two girls, one of whom was Cera Jones. Although there was confusion in their various statements, it appears that Kimber bought $10 worth of marijuana from Jones, who had to run into her house to retrieve it. While the four people were standing in or near the street, a car (described as a tan or brown Oldsmobile Cutlass) drove past, made a u-turn, and drove back toward the group. When the car stopped, a man exited the rear seat holding an AK-47 type rifle with a banana ammunition clip and a red laser sight. The man shot at both of the males, killing Weaver and injuring Kimber. The shooter apparently got back into the vehicle, and it drove away from the scene.

Kimber testified at trial that he immediately told police that Jimothy A. Jenkins was the shooter, although that was contrary to what was contained in the police report.

Jones told police at the scene that she did not know Kimber or Weaver, as well as that she could not see the shooter because it was dark, and the shooter was wearing a hoodie. About a week later, on April 1, Jones gave a description of the shooter, including that he had a clean-shaven baby face – a description not befitting Jenkins. Jones claims she also told police two days later that Jenkins was definitely not the shooter – information not contained in the police report.

Jenkins said he was sleeping when the shootings occurred; another witness gave conflicting information to police about Jenkins' whereabouts at the time.

Jenkins contends that while he was in jail awaiting trial, another man, Christopher Blunt, claimed responsibility for the shootings. Jenkins told his attorney that this comment was heard by another inmate, Corey Moore, but Jenkins' lawyer failed to subpoena Blunt or Moore to testify.

The jury found Jenkins guilty on three counts: one count of first-degree intentional homicide with use of a dangerous weapon, as party to the crime; one count of first-degree reckless injury with use of a dangerous weapon, as party to the crime; and one count of being a felon in possession of a firearm.

The court sentenced Jenkins on the homicide count to life in prison, with an eligibility date for extended supervision in 40 years. It imposed a consecutive sentence of seven years of initial confinement and seven years of extended supervision on the reckless injury count. It imposed a concurrent sentence on the firearm possession count.

Jenkins' postconviction counsel hired an investigator to interview Blunt, Moore and Jones. Blunt denied any knowledge of the shooting and denied knowing Jenkins; Moore and Jones provided statements to the investigator. Jenkins filed a post-conviction motion alleging that his trial counsel had provided ineffective assistance by not investigating, subpoenaing and examining Blunt, Moore, and Jones at trial. He sought a new trial.

The circuit court held an evidentiary hearing and denied the motion. It indicated that it could not reach a decision on whether the failure to call Jones to testify had been deficient performance because trial counsel had not provided any strategy concerning why she had not been called as a witness.

The circuit court concluded that failing to call Jones, Blunt and Moore did not constitute ineffective assistance of counsel because Blunt and Moore would not have testified about Blunt's alleged confession and Jones was not credible. Therefore, the defendant could not have suffered prejudice.

The Court of Appeals essentially agreed with the rulings and rationales of the circuit court. The Court of Appeals rejected Jenkins' argument that he should receive a new trial in the interest of justice because the jury was not given an opportunity to hear the testimony of Jones, Blunt and Moore. The Court of Appeals stated that a discretionary reversal due to the jury not hearing important evidence can occur only when the reason for not hearing the testimony was an erroneous evidentiary ruling by the trial court. See State v. Burns, 2011 WI 22, ¶45, 332 Wis. 2d 730, 798 N.W.2d 166. The Court of Appeals said that discretionary reversal was not an option in this case because the jury's inability to hear the testimony of Jones, Blunt and Moore was not due to an incorrect legal ruling by the trial court, but was due to the alleged ineffectiveness of counsel.

Jenkins argues that it is up to the jury, not the court, to determine whether the missing testimony should be credited. He contends testimony by Jones would have helped his case. From Milwaukee County.

2012AP378-W Kyles v. Pollard
This case examines the appropriate procedure for a defendant to follow when challenging trial counsel's alleged failure to file a notice of intent to pursue post-conviction relief. The notice of intent is the first step in bringing a direct appeal challenging a conviction or sentence.

Some background: In 2002, Lorenzo D. Kyles pled guilty to first-degree reckless homicide with use of a dangerous weapon. He was sentenced in November 2002 to 32 years of initial confinement and 8 years of extended supervision.

Kyles had no direct appeal because no notice of intent to pursue post-conviction relief was filed on his behalf. Why that document was never filed is a matter of some dispute. Kyles claims he tried to contact his attorney in the 20-day period following his sentencing to ask him to file a notice of intent to pursue post-conviction relief as required under Wis. Stat. § 809.30(2)(b).

However, according to the Court of Appeals' order, Kyles's attorney has adamantly denied that Kyles ever requested that he file that document.

Since 2003, Kyles has argued to both state and federal courts that he was denied the right to counsel on appeal. Every court has rejected his claims, including the Court of Appeals, which denied the writ of habeas corpus now before the Supreme Court.

In the habeas petition at issue, Kyles asked the Court of Appeals to extend the time for him to file a notice of intent to pursue post-conviction relief, citing his attorney's previous alleged failure to do so. The Court of Appeals denied Kyles' request, holding that claims of ineffective assistance of post-conviction counsel must be brought in the trial court, not in a Knight petition in the Court of Appeals. (A Knight petition is a habeas petition, filed in the Court of Appeals, alleging ineffective assistance of appellate counsel. State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).)

In his petition for review, Kyles argues that Wisconsin case law provides no clear answer as to how or where to attack a lawyer's failure to file a notice of intent to pursue post-conviction relief. Kyles argues that it makes no sense to force him to pursue relief in the trial court because the trial court has no authority to grant him the relief he needs – an extension of the time limit for filing a notice of intent to pursue post-conviction relief. See Wis. Stat. § 809.82(2)(a).

The state contends that the Court of Appeals' order is consistent with Wisconsin's general rule that ineffectiveness claims should be raised in the court where counsel was ineffective – here, in the trial court, where the notice of intent must be filed. The state maintains that even though a trial court has no ability to extend the notice of intent deadline (only the Court of Appeals may do so), a trial court, if persuaded by a defendant like Kyles, could vacate and reenter the judgment of conviction, giving the defendant a fresh 20 days to file a notice of intent. From Milwaukee County.

2012AP1967 Data Key Partners v. Permira Advisors
In this dispute between shareholders over the sale of a business, the Supreme Court examines, among other things, the business judgment rule, which is codified in Wis. Stat. § 180.0828.

The business judgment rule protects directors from liability for a fault in the business-decision-making process or in the decision itself, so long as the directors made the decision in the honest belief that it was in the best interest of the company.

Some background: Renaissance Learning Inc. was a publically traded Wisconsin corporation before being sold to Permira Advisors LLC and affiliated entities. Renaissance had approximately 29 million shares of common stock outstanding, held by approximately 269 stockholders and by more than 2,000 beneficial owners.

Terrance and Judith Paul co-founded Renaissance, owned a majority of the company's shares, and sat on the corporation's board of directors. The Pauls decided to "cash out" their ownership in Renaissance as part of their retirement plans. Given the large number of shares that the Pauls held, they were unable to sell their shares on the open market. Also, the Pauls believed they could maximize the share price by selling the entire company. The Pauls' personal banker, Goldman Sachs, was selected to act as financial advisor for the sale of Renaissance.

Renaissance and Permira entered into an "Agreement and Plan of Merger" under which Permira would merge with or purchase Renaissance for $14.85 per share. A different company, Plato Learning, Inc., then offered to purchase Renaissance for $15.50 per share.

The Renaissance board of directors rejected the Plato offer and instead entered into an amended agreement with Permira under which Permira would pay $15 per share to the Pauls and $16.60 per share to minority shareholders, in part because the Pauls thought that a deal with Permira had a high likelihood of closing; failure to close a deal with Permira would result in a $13 million termination fee; and Permira had agreed to grant a license benefitting a separate company controlled by the Pauls.

Plato made a revised offer consisting of $15.10 per share for the Pauls and $18 per share for minority shareholders, equaling an aggregate purchase price of approximately $471 million. The Pauls informed the other board members that they would not support acceptance of this revised Plato offer.

Plato made a third offer for a total of approximately $496 million that was rejected by Renaissance leadership. Ultimately, Renaissance was sold to Permira, consistent with the amended agreement between Renaissance and Permira.

Data Key Partners was a minority shareholder in Renaissance. Data Key sued the Pauls, the other Renaissance directors, and Permira. Data Key alleged that it represented the minority shareholders as a class. Data Key brought four claims, each of which was dismissed by the trial court following the Permira's motion to dismiss.

Data Key appealed. The Court of Appeals affirmed the trial court's dismissal of two of Data Key's four claims. The Court of Appeals reversed and reinstated the other two of Data Key's claims, which remain subject of this appeal: their claim against the Renaissance directors for breach of fiduciary duty, and their claim against the Pauls for breach of fiduciary duty in their capacity as majority shareholders.

The Court of Appeals ruled that it is inappropriate to apply the business judgment rule at the motion to dismiss stage because application of the rule generally requires a fact-intensive analysis that is incompatible with notice pleading. The Court of Appeals also reversed that part of the trial court's decision that dismissed Data Key's claim for breach of fiduciary duty against the Pauls as majority shareholders. The Supreme Court now reviews, among other things, whether the trial court erred in applying the business judgment rule against Data Key at the motion to dismiss stage of the proceedings. From Wood County.

2013AP221 Dow Family v. PHH Mortgage Corp.
This foreclosure case examines the doctrine of equitable assignment and whether a mortgage automatically transfers upon the transfer of the associated note, without the need for a written mortgage assignment. A decision by the Supreme Court could affect borrowers, lenders and other businesses statewide, including those who have relied on the services of the privately run Mortgage Electronic Registration Systems, Inc., (MERS).

As described by the Court of Appeals, MERS is an electronic registration system for mortgages that does not originate, lend, service, or invest in home mortgage loans. Instead, MERS acts as the nominal mortgagee for the loans owned by its members, which include lenders, financial institutions, and servicers who pay a membership fee to MERS. The mortgage itself is recorded, but subsequent assignments of the mortgage between MERS members typically are not. Instead, MERS tracks the assignments.

In this case, Dow Family LLC bought a condominium unit in Barron County from prior property owners, William and Jo Sullivan. The Sullivans had issued a note to "U.S. Bank, National Association," on May 17, 2001 in the sum of $146,250. The note, recorded June 22, 2001, was secured by a mortgage on the condominium and listed MERS as the mortgagee.

In preparation for the sale of the condominium to Dow, Dow's attorney obtained a title commitment which showed two mortgages to U.S. Bank: the 2001 mortgage, and a 2003 mortgage in the sum of $140,000.

Dow's attorney e-mailed the Sullivans' attorney to ask about the mortgages. In response, the Sullivans' attorney stated that "the US Bank mortgage originated in 2001 (original amount $146,250) [and] should no longer be on the title and is the same mortgage listed . . . from 2003 (original amount $140,000)."

The sale to the Dow Family closed on May 20, 2009, without paying off the first mortgage on title. The closing statement shows that a single mortgage to U.S. Bank in the amount of $143,140.89 was satisfied at closing.

On Nov. 24, 2009, in-house counsel for PHH Mortgage Corporation, wrote to Dow's attorney asserting that the 2001 mortgage "remain[ed] of record because the Note was not paid in full." PHH's attorney stated the loan was delinquent, and PHH would initiate foreclosure proceedings if Dow did not take steps to resolve the matter.

Dow filed a lawsuit against PHH seeking a declaratory judgment that the 2001 mortgage no longer constituted a lien on the property. PHH filed a separate lawsuit seeking a foreclosure judgment. The two lawsuits were consolidated.

PHH's complaint alleged it was "the current holder of a certain note and recorded mortgage on real estate located in this county," and that true copies of the note and mortgage were attached to the complaint. The attached copy of the note listed U.S. Bank as the lender and William and Jo Sullivan as the borrowers. It did not contain any endorsements. PHH later produced a copy of the note with two undated endorsements: an endorsement from U.S. Bank to "Cendant Mortgage Corporation d/b/a PHH Mortgage Services Corporation," and an endorsement in blank by Cendant.

The copy of the mortgage attached to PHH's complaint listed MERS as the mortgagee and the Sullivans as the borrowers. No assignment of mortgage was attached to the complaint. The complaint did not allege the existence of any assignment.

PHH successfully moved for summary judgment, and the court entered a foreclosure judgment in favor of PHH.

Dow appealed, with partial success. The Court of Appeals held that there were simply too many questions surrounding the note that PHH submitted on summary judgment for the court to conclude it was a true and correct copy of an original note in PHH's possession. However, the Court of Appeals agreed with PHH that the doctrine of equitable assignment applied in this case, and, consequently, that PHH did not need to prove a written assignment of mortgage.

Dow contends that the doctrine of equitable assignment cannot apply to real estate mortgages because the statute of frauds requires that every assignment of a real estate mortgage be in writing, signed, and delivered. See Wis. Stat. § 706.02(1).

Dow claims that at the time Dow purchased the property, the mortgage was held by MERS, but the note was held by a different entity, perhaps PHH. Dow contends that because the note and mortgage were held by separate entities, there was no enforceable mortgage.

PHH says this case presents an application of the common law doctrine of equitable assignment that has been around for 100 years and is codified in Wis. Stat. § 409.203(7). From Barron County.

Review denied: The Supreme Court denied review in the following cases. As the state's law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court:

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2012AP1708-CR State v. Henry2013AP1727-W Deischsel v. Douma

Tom Sheehan
Court Information Officer
(608) 261-6640


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