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• Chapter 980 Commitments/ Evidence Hearing/ Procedure/ Statutes/ Statutory Construction-Interpretation
  
  State v. Arends
  Docket: 2008AP000052 11-19-08
  Recommended for Publication
  

  SNYDER, J. Daniel Arends appeals from an order denying his petition for discharge from his WIS. STAT. ch. 980 (2005-06) commitment. He contends that the circuit court erred when it denied his petition without an evidentiary hearing. We agree and reverse the order, remanding the matter for a WIS. STAT. § 980.09(2) evidentiary hearing.
• Criminal Law/ Charges/ Evidence/ Sentencing/ Waiver Of Issue
  
  State v. Payne
  Docket: 2007AP002721 11-18-08
  

  KESSLER, J. Antoine A. Payne appeals from a judgment of conviction for felony murder-armed robbery, criminal damage to property and driving a vehicle without the owner's consent, all as a party to a crime, contrary to WIS. STAT. §§ 940.03, 943.01(2)(d), 943.23(3) and 939.05 (2005-06). He argues that the evidence introduced at his trial was insufficient to support his conviction for felony murder-armed robbery because it failed to demonstrate that he aided or abetted the armed robbery. Payne also argues that the sentence he received is unduly harsh and that the trial court erroneously exercised its discretion when it sentenced him. We conclude that there was sufficient evidence to support the conviction and that Payne waived his challenge to his sentence by not filing a motion for sentence modification in the trial court. Accordingly, we affirm.
• Criminal Law/ Evidence/ Evidence Ruling/ Miranda Rights
  
  State v. Martinez
  Docket: 2007AP002549 11-18-08
  

  PER CURIAM. Adan Martinez appeals from a judgment of conviction entered after a jury found him guilty of one count of second-degree sexual assault of a child and one count of repeated acts of sexual assault of a child. See WIS. STAT. §§ 948.02(2), 948.025(1)(b) (2003-04). Martinez challenges only the circuit court's decision to admit his custodial statement into evidence. We affirm.
• Criminal Law/ Evidence/ Ineffective Assistance Of Counsel/ Prosecutorial Misconduct/ Arrest/ Constitutional Law/ Searches
  
  State v. Forbes
  Docket: 2007AP002944 11-19-08
  

  PER CURIAM. A jury convicted Crin H. Forbes of two counts of battery to a police officer, one count of resisting or obstructing an officer and one count of disorderly conduct, contrary to WIS. STAT. §§ 940.20(2), 946.41(1) and 947.01 (2005-06). Forbes appeals from the judgment of conviction and from the orders denying his postconviction motion seeking either dismissal or a Machner hearing. Forbes contends that defense counsel's and the prosecutor's failure to introduce a particular photograph at trial represents the former's ineffective assistance and the latter's prosecutorial misconduct. He also contends that the officers' entry into his home was illegal, making his subsequent arrest improper. Because the photograph was of minimal evidentiary value and, on these facts, State v. Annina, 2006 WI App 202, 296 Wis. 2d 599, 723 N.W.2d 708, validates the arrest, we affirm the conviction.
• Criminal Law/ Evidence/ Right To Confront/ Statutes/ Experts/ Evidence Ruling
  
  State v. Swope
  Docket: 2007AP001785 11-19-08
  Recommended for Publication
  

  ANDERSON, P.J. Craig A. Swope appeals from his conviction for two counts of intentional first-degree homicide. He claims that the trial court erred in permitting an FBI agent to testify about a "death scene" analysis that he conducted. First, Swope asserts that "death scene" analysis is a "junk science," and the agent was not qualified to give an expert opinion. Second, he argues that the admission of the agent's conversations with third parties violated his confrontation rights. We reject his claims and affirm. The admission of the agent's expert testimony met the standards of the relevancy test that Wisconsin uses for assessing expert testimony. And, Swope's confrontation rights were not impinged upon by the agent testifying about information and opinions he got from third parties.
• Criminal Law/ Identity Theft/ Statutes/ Statutory Construction-Interpretation/ Evidence/ Jury Instructions
  
  State v. Peck
  Docket: 2007AP002732 11-19-08
  

  PER CURIAM. A jury convicted Daniel J. Peck of three counts of identity theft, finding that he engaged in conduct intended "to harm the reputation, property, person, or estate" of his ex-wife, contrary to WIS. STAT. § 943.201(2)(c) (2005-06). Peck argues on appeal, as he did on motions after verdict, that the word "harm" is unconstitutionally vague and that the State failed to prove that he intended to harm his ex-wife's reputation, property, person or estate. The trial court denied his motions, concluding that the jury permissibly gave the word its ordinary meaning, and that the evidence was sufficient. We agree and affirm.
• Criminal Law/ Ineffective Assistance Of Counsel Assistance Of Counsel/ Writ Of Habeas Corpus/ Statutes/ Statutory Construction-Interpretation
  
  State v. Lynch
  Docket: 2007AP001976E 11-19-08
  
• Criminal Law/ Mistrial/ Evidence/ Closing Argument/ New Trial
  
  State v. Tucker
  Docket: 2008AP000212 11-20-08
  State v. Tucker
  Docket: 2008AP000213 11-20-08
  

  PER CURIAM. Antonio Lamont Tucker appeals judgments convicting him of two counts of armed robbery, and one count of felon possessing a firearm. He contends that the circuit court should have declared a mistrial at the beginning of the trial and during closing arguments. He also contends that the circuit court erred by allowing the State to introduce inadmissible testimony at his trial. We affirm.
• Criminal Law/ Pleas/ Knowingly & Voluntarily/ Plea Colloquy
  
  State v. Kronberger
  Docket: 2007AP002754 11-20-08
  

  PER CURIAM. Richard Kronberger appeals a judgment convicting him of second-degree sexual assault of a child and an order denying his motion for postconviction relief. He argues that his guilty plea was not knowingly and voluntarily entered. We agree. Therefore, we reverse and remand for further proceedings.
• Criminal Law/ Pleas/ Plea Withdrawal/ Child Consent/ Statutes/ Jury Instructions/ Evidence
  
  State v. Zeise
  Docket: 2008AP000733 11-18-08
  

  BRUNNER, J. Thomas Zeise appeals a judgment of conviction for fourth-degree sexual assault and an order denying his postconviction motion. Zeise contends the circuit court erroneously denied his motion for plea withdrawal by concluding there was a sufficient factual basis for Zeise's Alford plea. We agree and reverse and remand to allow Zeise to withdraw his plea.
• Criminal Law/ Pleas/ Sentencing/ Sentencing Modification/ Judicial Authority-Discretion
  
  State v. Schmidt
  Docket: 2007AP002445 11-19-08
  

  PER CURIAM. Curtis J. Schmidt has appealed from a judgment convicting him of five counts of possession of child pornography in violation of WIS. STAT. § 948.12(1m) (2005-06), one count of exposing a child to harmful materials in violation of WIS. STAT. § 948.11(2)(a), and one count of sexual exploitation of a child in violation of WIS. STAT. § 948.05(1m). In exchange for Schmidt's pleas of guilty to the possession of child pornography charges and his pleas of no contest to the charges under §§ 948.05(1m) and 948.11(2)(a), fifteen additional counts of possession of child pornography were dismissed and read in for purposes of sentencing.
• Criminal Law/ Right To Attorney/ Ineffective Assistance Of Counsel/ New Trial/ Substitute Of Attorney
  
  State v. Brown
  Docket: 2007AP002879 11-18-08
  State v. Brown
  Docket: 2008AP000268 11-18-08
  

  KESSLER, J. Lew A. Brown appeals from a judgment of conviction and orders denying his two postconviction motions for relief. Brown was convicted of two crimes after a jury trial: being a felon in possession of a firearm, contrary to WIS. STAT. § 941.29(2)(a) (2005-06); and possession of a short-barreled shotgun, contrary to WIS. STAT. § 941.28(2). Brown was also convicted of fleeing an officer, contrary to WIS. STAT. § 346.04(3), based on his guilty plea. Brown argues that all three convictions should be overturned and a new trial should be held on all three charges because the trial court erroneously denied his request to change attorneys prior to entering his guilty plea on one charge and going to trial on the other two. In the alternative, he argues that this court should reverse his two firearms convictions because his trial counsel failed to obtain and use a photograph in Brown's defense. We conclude that the trial court did not erroneously exercise its discretion when it denied Brown's implicit motion to change attorneys. We further conclude that Brown was not prejudiced by his trial counsel's deficient performance. For these reasons, we affirm.
• Criminal Law/ Sentencing/ Commutation Of Sentencing/ Probation/ Work Release/ Escape
  
  State v. Parrett
  Docket: 2008AP000388 11-18-08
  

  PER CURIAM. Lee Parrett appeals from the order of the circuit court that denied his petition to commute his sentence under WIS. STAT. § 973.13 (2005-06). He argues that his sentence was illegal because he was charged with escape for failing to return after work release. Because we conclude that Parrett was properly charged with escape, we affirm.
• Criminal Law/ Waiver Of Right To Testify/ Mistrial/ Jury Instructions/ Constitutional Law
  
  State v. Parrish
  Docket: 2008AP000563 11-18-08
  

  PER CURIAM. Michael Parrish appeals a judgment, entered upon a jury's verdict, convicting him of one count of second-degree sexual assault as a repeater. Parrish asserts the court erroneously denied his motion for a mistrial; did not ascertain whether Parrish knowingly, intelligently, and voluntarily waived his right to testify; and did not give the correct jury instructions. We reject Parrish's arguments and affirm.
• Employment Law/ Collective Bargaining/ Contracts/ Agencies/ Jurisdiction/ WERC/ Constitutional Law/ Statutes/ County
  
  Ozaukee County v. Labor Association
  Docket: 2007AP001615 11-19-08
  Recommended for Publication
  

  ANDERSON, P.J. The Labor Association of Wisconsin (LAW), appeals three decisions of the circuit court. LAW's substantive argument is that Ozaukee County and its sheriff, Maury Straub, are in violation of a collective bargaining agreement (CBA) between LAW and Ozaukee County. LAW claims that the circuit court erred when it granted the County's motion for summary judgment asking that the court declare the sheriff's constitutional authority with respect to the Court Services Unit (CSU) and assigning those unit members to transport prisoners of the U.S. Marshal or State of Wisconsin without regard to the CBA. We agree with LAW and, therefore, reverse the circuit court on the merits.
• Employment Law/ Department of Workforce Development (DWD) / Administrative Law/ Judicial Authority-Discretion/ Doctrine Of Exhaustion Of Administrative Remedies/ Procedure
  
  Levin v. Gass & Riegert Auto Complex
  Docket: 2008AP000578 11-20-08
  Levin v. Gass & Riegert Auto Complex
  Docket: 2008AP000579 11-20-08
  

  HIGGINBOTHAM, P.J. Mathew E. Levin appeals the dismissal by the circuit court of two wage claim cases for alleged nonpayment of overtime and vacation pay. The court concluded that Levin's claims could not be heard because he had already pursued them with the State of Wisconsin Department of Workforce Development (DWD) and failed to file an administrative appeal when DWD denied the claims. Levin argues that he is entitled to pursue his claims in state court despite failing to appeal DWD's decision. Because we conclude that the circuit court did not erroneously exercise its discretion in precluding Levin's state court claims under the doctrine of exhaustion of administrative remedies, we affirm the circuit court's judgment.
• Family Law/ Paternity/ Child Support/ Divorce/ Marital Settlement Agreement/ Statutes/ Statutory Construction-Interpretation
  
  Daniel T.W. v. Joni K.W.
  Docket: 2008AP000902 11-20-08
  Recommended for Publication
  

  DYKMAN, J. Daniel T. W. appeals from a judgment of divorce adjudicating him the father of Kristopher M. W. Daniel contends that a prior court order dismissing child support proceedings against him and finding that he is not Kristopher M. W.'s biological father precludes a contrary paternity determination. Kristopher M. W., by his guardian ad litem, argues that Daniel is his father based on an acknowledgment of parentage form that Daniel signed at the time of Kristopher M. W.'s birth. We conclude that Daniel is bound by the acknowledgement of parentage form under the facts of this case. We affirm.
• Legal Malpractice/ Judicial Authority-Discretion/ Evidence
  
  Kypke v. Previant
  Docket: 2007AP002496 11-20-08
  

  PER CURIAM. Mark Kypke appeals from a judgment dismissing his legal malpractice claim. We affirm.
• LIRC/ Employment Law/ Benefits/ Administrative Law Judge/ Evidence/ Burden Of Proof
  
  Acuity Insurance v. L.I.R.C.
  Docket: 2008AP000297 11-19-08
  

  PER CURIAM. Acuity Insurance Company appeals from an order confirming a decision of the Labor and Industry Review Commission (LIRC) dismissing Acuity's claim for decreased compensation under WIS. STAT. § 102.58 (2005-06). Credible and substantial evidence supports LIRC's decision, and the evidence does not offer a more reasonable conclusion. We therefore must affirm.
• Negligence/ Insurance/ Public Policy/ Police/ Personal Injury/ Summary Judgment
  
  Glennon v. Hansen
  Docket: 2008AP001561 11-18-08
  

  PER CURIAM. Eau Claire Police Officer Michael Glennon and his wife, Keo Glennon, appeal a summary judgment dismissing their negligence action against Ross Hansen, and Hansen's mother's insurer, American Family Insurance Group, for knee injuries Michael Glennon sustained while apprehending Hansen. The Glennons argue the trial court erred by concluding public policy considerations precluded their action as a matter of law. We agree. We therefore reverse and remand for further proceedings.
• Property/ Insurance/ Insurance Coverage/ Contracts/ Duty To Defend
  
  Bloomfield Road, L.L.C. v. DeMichele
  Docket: 2007AP002396 11-19-08
  

  PER CURIAM. Bloomfield Road, LLC, sued Paul DeMichele and other owners of adjacent lakefront properties for an injunction requiring docks to be placed based on the "right angle method." DeMichele appeals pro se from a judgment declaring that his homeowner and personal umbrella insurance provider, Allstate Insurance Company, does not provide coverage for the subject of Bloomfield's lawsuit. We affirm the judgment.
• Property/ Procedure/ Compensation/ Doctrine Of Exhaustion Of Administrative Remedies/ Department of Transportation (DOT)/ Statutes/ Administrative Regulation/ Doctrine Of Exclusive Remedy
  
  Lamar Central Outdoor v. D.O.T.
  Docket: 2008AP000439 11-20-08
  Recommended for Publication
  

  VERGERONT, J. Lamar Central Outdoor, LLC, seeks compensation for an outdoor advertising sign that was removed by the Wisconsin Department of Transportation (DOT) after DOT issued a removal order asserting the sign was unlawful. The primary issue on appeal is whether the administrative and judicial review provided in WIS. STAT. § 84.30(18) (2005-06) is the exclusive procedure for determining the legality of the sign after a removal order has issued, even if DOT has already removed the sign. The circuit court concluded this was the exclusive procedure and dismissed this action because Lamar had not exhausted this procedure. We agree with the circuit court. We conclude the administrative and judicial review provided in § 84.30(18) is the exclusive procedure for challenging the legality of Lamar's sign after issuance of the removal order, even though DOT removed the sign. We also conclude that a determination under § 84.30(18) that Lamar's sign is legal is a necessary predicate to just compensation for the sign under the statutory scheme. Because Lamar did not exhaust the administrative and judicial review procedure in § 84.30(18) before bringing this action for just compensation and because we conclude no exception from the exhaustion doctrine is warranted, we affirm.
• Summary Judgment/ Failure To State A Claim/ Procedure/ Statutes/ Contracts/ Notice
  
  Alliance Laundry Systems v. Stroh Die Casting
  Docket: 2007AP002857 11-19-08
  Recommended for Publication
  

  BROWN, C.J. WISCONSIN STAT. § 802.06(2)(b) (2005-06) allows the circuit court to convert a defendant's motion to dismiss for failure to state a claim into a summary judgment motion. Here, the circuit court did convert the motion into a summary judgment motion even though the defendant, Stroh Die Casting Co., Inc., had not filed an answer. The plaintiff, Alliance Laundry Systems LLC, claims that such conversion ran afoul of WIS. STAT. § 802.08, which requires that the pleadings be complete before a court can review a summary judgment motion. City of LaCrosse v. Jiracek Cos., Inc., 108 Wis. 2d 684, 690, 324 N.W.2d 440 (Ct. App. 1982). So, the first issue is whether § 802.06 (2)(b) serves as an exception to the summary judgment procedure laid out in § 802.08. We conclude that it is an exception and the court may convert a motion to dismiss into summary judgment before an answer is filed. We also hold that Alliance had the appropriate notice even though the court alerted Alliance that it "might" convert the case into a summary judgment rather than saying that it "would" do so. Nonetheless, we also hold that there exists a genuine issue of material fact as to the parties' intent. Consequently, we affirm the circuit court's conversion to summary judgment, reverse the grant of summary judgment and remand this case to allow Stroh to answer Alliance's complaint.