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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                             This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
June 21, 2005
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                             petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                                     Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                              and RULE 809.62.
                                                                                                                                                              Cir. Ct. No.   2001TR33673
Appeal No.                                                                                  2004AP348
STATE OF WISCONSIN                                                                                                                                            IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
MICHAEL V. HENDRICKS,
DEFENDANT-APPELLANT.
APPEAL from orders of the circuit court for Milwaukee County:
LOUIS R. BUTLER, Judge.  Affirmed.
¶1                                                                                          KESSLER, J.1    On October  3,  2001, Michael V. Hendricks pled
guilty  and  was  convicted  of  operating  while  intoxicated,  first  offense,  and
operating after suspension, first offense.   Since that time, Hendricks has filed tens
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2003-04).  All
references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.




No.   2004AP348
of pro se motions related to his case.   In this, his second appeal, Hendricks appeals
from:                                                                                              (1) an order denying his motion to reopen the judgment for operating while
intoxicated,  first  offense;                                                                      (2) an  order  denying  his  motion  for  relief  from
forfeitures due to indigency and dismissing other pending motions; and  (3) an
order  denying  his  motion  to  stay  an  order  committing  him  to  the  House  of
Correction, pending the outcome of this appeal.2   This court rejects his arguments
and affirms the orders.
BACKGROUND
¶2                                                                                                 On February  4,  2003, this court issued an opinion that addressed
three trial court orders, including an order denying Hendricks’ motion to reopen
his operating while intoxicated case.   See State v. Hendricks, Nos. 2002AP1153
and  2002AP1154,  unpublished  slip.  op.  (WI  App  Feb.  4,  2003).    This  court
affirmed the orders, with one exception.   This court explained:
With   regard   to   his   conviction   for   operating   while
intoxicated (Case No. 02-1153), Hendricks submits that he
filed a motion to reopen the judgment on October 23, 2001
in this case, and the trial court refused to hear it.    The
County  argues  that  Hendricks  failed  to  file  his  motion
timely and that he failed to present an argument as to what
“mistake” he claims occurred when he pled guilty.    His
original motion to reopen bears a file stamp of the clerk of
the Circuit Court Criminal Division of October 23, 2001,
and an office of the District Attorney file stamp date of the
2  Hendricks’ supplemental notice of appeal specifically refers to an April 5, 2004, order
denying his motion to stay the commitment order, but also alludes to an earlier decision denying
Hendricks’ pending motions, including his request for relief from the forfeitures based on
indigency.    It was this earlier order, dated February  18,  2004, that cleared the way for the
commitment  order  to  be  entered,  and  Hendricks  presents  argument  with  respect  to  the
February 18, 2004, order.   This court concludes that Hendricks is appealing not only from the
order denying his motion to stay the commitment order, but also from the underlying order
denying his pending motions, including the motion to be relieved of his obligation to pay
forfeitures due to indigency.
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No.   2004AP348
same date.   Inasmuch as his motion was apparently never
forwarded to the trial court (assuming through no fault of
Hendricks), this court will remand this matter to the trial
court to decide the motion nunc pro tunc, provided that
Hendricks files an affidavit with the trial court verifying
that he did not contribute to the trial court’s failure to hear
the motion; e.g., that he did not withdraw the motion for the
trial court’s consideration.
Id. at ¶5.
¶3                                                                                            On May 20, 2003, Hendricks filed an affidavit stating that he at no
time contributed to the trial court’s failure to hear his motion.   A status conference
on Hendricks’ motion to reopen the October 3, 2001, judgment was scheduled for
November  18, 2003.3   On October  13,  2003, Hendricks filed a motion seeking
permission to attend the status conference by telephone so that he could avoid
being arrested at that hearing pursuant to arrest warrants that Hendricks termed
“unjustified.”   The trial court did not grant Hendricks’ motion to appear by phone.
¶4                                                                                            On November  18,  2003, Hendricks failed to appear, although his
father attempted to appear on his behalf.    The trial court reviewed Hendricks’
May 20,  2003, affidavit concerning the trial court’s failure to hear Hendricks’
October 23,  2001, motion to reopen his operating while intoxicated judgment.
The trial court then reviewed Hendricks’ October  23,  2001, motion.    The trial
court denied the motion to reopen, concluding:                                                “I don’t see anything in this
motion  that would  allege  that the  plea  was not knowing[ly],  intelligent[]  and
voluntary and that he was not apprised that his license was suspended….   I don’t
see a basis for allowing the matter to reopen[.]”   The trial court indicated that it
3  Although entitled a “motion to reopen,” it appears that it was actually a motion to
withdraw his guilty plea, based on what he claims was erroneous advice offered by his trial
counsel.
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No.   2004AP348
was also denying the motion based on Hendricks’ failure to prosecute the motion
personally or through counsel.
¶5                                                                                        On  December                                                          23,   2003,  Hendricks  filed  a  motion  to  defer
enforcement of the case’s disposition pending a trial court ruling on his previously
filed motion for relief from the imposed forfeitures based on alleged indigency.
On January 20, 2004, he filed a notice of appeal from the November 18, 2003,
decision.
¶6                                                                                        On January 30, 2004, the trial court scheduled an indigency hearing
for February 18, 2004.   Hendricks filed a motion to adjourn the hearing and appear
by telephone.   That motion was denied on February 12, 2004.   On February 18,
2004, Hendricks did not appear for the hearing.   He provided no explanation for
his  absence.    The  trial  court  denied  Hendricks’  indigency  motion  and  other
pending motions, for want of prosecution.
¶7                                                                                        On March 19, 2004, the Honorable Patricia D. McMahon ordered
Hendricks committed to the county jail for failure to pay the forfeitures associated
with  this  case.    Hendricks  filed  a  motion  to  stay that  order  for  commitment
pending the completion of his appeal of the trial court’s order denying his motion
to reopen and so that he could attend proceedings  “without fear of  … being
incarcerated.”   The trial court denied this motion on April 5, 2004.
¶8                                                                                        Hendricks filed a supplemental notice of appeal on April 14, 2004,
indicating that in addition to appealing the trial court’s November 18, 2003, ruling,
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No.   2004AP348
he was also appealing the trial court’s April 5, 2004, order denying his motion to
stay the commitment.   This appeal followed.4
DISCUSSION
¶9                                                                                                   The State urges this court to reject Hendricks’ appeal on grounds
that it is moot because he has already satisfied the forfeitures.   If Hendricks were
to successfully reopen the judgment, it could affect his record and potentially have
other consequences.   Thus, this court declines to decide this case on mootness
grounds.
¶10    The State also argues that because Hendricks’ brief is incoherent and
does not comply with the Rules of Appellate Procedure, it should be dismissed.
This court agrees that the brief is difficult to follow, but concludes that it can infer
Hendricks’ arguments sufficiently to address the issues.
¶11    We begin with the trial court’s order denying Hendricks’ motion to
withdraw his guilty plea (which he termed a motion to “reopen the judgment”).
Hendricks asserts that when the notice scheduling the November 18, 2003, court
date was sent to the parties on September 30, 2003, it was erroneously mailed to
Hendricks’ previous attorney, rather than Hendricks himself.   Even if the notice
should  have  been  sent  directly  to  Hendricks,  he  was  not  prejudiced.    It  is
undisputed that Hendricks ultimately received notice of the hearing, as evidenced
by the fact that he filed a motion on October  13,  2003, seeking to appear by
telephone at the November 18, 2003, court date.
4  Subsequent to filing the supplemental notice of appeal, Hendricks filed another motion
to stay the commitment order and to review his indigency status.  The trial court’s orders denying
those motions are not part of this appeal and will not be addressed.
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No.   2004AP348
¶12    The  trial  court  denied  Hendricks’  motion  based  on  Hendricks’
failure to prosecute and failure to allege an adequate basis for plea withdrawal.
Dismissal of a case for failure to prosecute is addressed to the sound discretion of
the trial court, and we will affirm the trial court’s action unless it is clearly shown
that there was an erroneous exercise of discretion.   Zeis v. Fruchauf Corp., 56
Wis. 2d 486, 489, 202 N.W.2d 225 (1972).   To the extent Hendricks is arguing
that his motion should not have been decided in his absence, this court rejects his
argument because  Hendricks knew  about the  court date  and failed to appear.
Hendricks offered no reason for his non-appearance, either prior to the hearing or
afterward, except to assert in his motion to appear by phone that he feared the
execution of arrest warrants.   This is not a reason that justifies non-appearance.
The trial court did not erroneously exercise its discretion in denying the motion on
this ground.
¶13    In  addition,  Hendricks  offers  no  argument  that  the  trial  court’s
decision to deny Hendricks’ motion on the merits was erroneous.   Based on the
lack of argument on that issue, this court sees no reason to disturb the trial court’s
order denying Hendricks’ motion to withdraw his guilty plea.   See State v. Pettit,
171  Wis.  2d  627,  646-47,  492  N.W.2d  633  (Ct.  App.  1992)  (court need  not
address issues not fully briefed).
¶14    Next,  Hendricks  offers  argument  concerning  the  trial  court’s
February 18, 2004, order denying his request for relief based on indigency and
denying his other pending motions.    Hendricks seeks a reconsideration of his
continuous state of indigency regarding the forfeitures he was ordered to pay.
Hendricks argues that even though he did not appear at the hearing, the trial court
had before it “necessary sufficient evidence” to decide the motion in Hendricks’
favor without the need for a hearing.
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No.   2004AP348
¶15    Once again, Hendricks has offered no reason for his failure to appear
at the hearing on February 18, 2003.   He was aware of the hearing, having filed a
motion to adjourn the hearing and appear by telephone.   That motion was denied
on February 12, 2004.   Hendricks’ failure to appear, without explanation provided
either before or after the hearing, justified the trial court’s exercise of discretion
denying Hendricks’ pending motions.   The fact that Hendricks may have believed
that the hearing was unnecessary does not justify his non-appearance.   This court
concludes that the trial court did not erroneously exercise its discretion when it
dismissed Hendricks’ pending motions on February 18, 2004.
¶16    Finally,  we  turn  to  Hendricks’  argument  that  the  trial  court
erroneously denied his motion to stay a March 19, 2004, order to commit him to
the  House  of  Correction.    The  Honorable  Patricia  D.  McMahon  issued  the
March 19 order after the trial court denied Hendricks’ motion for relief from costs
based on indigency on February 18,  2004.   In his motion to stay the order for
commitment,  Hendricks  asserted  that  he  should  be  allowed  to  complete  his
pending appeal on the denial of his motion to reopen the judgment, and that he
should be able to attend the proceedings without fear of being incarcerated.   This
court concludes that the trial court did not erroneously exercise its discretion when
it denied this motion.   Hendricks offered no legal authority at the trial court or on
appeal that would justify staying the commitment for the reasons he asserted.
By the Court.—Orders affirmed.
This   opinion   will   not   be   published.                                            See   WIS.   STAT.
RULE 809.23(1)(b)4.
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