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BENCH BLOG: Attorney loses appeal of his own criminal conviction

Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at jeandimotto@gmail.com

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at jeandimotto@gmail.com.

The Court of Appeals has rejected a disbarred attorney’s pro se bid to overturn his felony conviction for theft.

The conviction arose from the attorney’s dealings with a wealthy widow.

The crime

Jeffrey Elverman was originally retained in 2000 to draft estate planning documents for the widow. He was designated successor agent on both the durable power of attorney and health care power of attorney. When the agent resigned in January 2001, Elverman became her agent for both finances and health care.

By virtue of the latter, he was in communication with the widow’s caretaker and doctors about her deterioration from Alzheimer’s disease over the next couple of years. On March 24, 2003, at Elverman’s request, one of the widow’s physicians provided Elverman with a certification of her mental incapacitation.

Elverman immediately began writing checks on her account, payable to himself, for several thousand dollars at a time. The widow would sign the checks, and he would then cash them and deposit the money in his account.

He cashed the first check the day after receiving the doctor’s certification. He cashed the last check 18 months later on Sept. 23, 2004. By then his law firm was investigating him for false time records and billing.

The charge

The district attorney’s office eventually became involved in a criminal investigation of Elverman’s financial conduct with the widow. He was thereafter charged with one count of felony theft, that is, theft in an amount greater than $10,000.

The complaint was three pages and listed each check Elverman cashed from the widow’s account between March 25, 2003,, and Sept. 23, 2004, for a total of nearly $375,000. A jury trial was conducted before Milwaukee County Circuit Judge Jeffrey Conen, and Elverman was convicted.

Despite being represented by counsel in the circuit court, Elverman appealed pro se.

Appellate issues

Elverman raised six issues on appeal. The District 1 Court of Appeals decided the issues in a lengthy opinion authored by Presiding Judge Patricia Curley.

The court first dealt with Elverman’s argument that the complaint was insufficient because it never cited sec. 973.36(3), the statute that allows the state to aggregate individual acts of theft and prove that he acted pursuant to a single intent and design.

This was important because no single check was written in an amount greater than $10,000, so without the aggregation of multiple checks, no single check would lead to a felony conviction.

While the court acknowledged that it is preferable for the state to have cited the statute in the complaint, Elverman was not prejudiced. It was clear that he had notice of the aggregation because the state and his own attorney cited the statute in oral arguments on a pretrial motion to dismiss when Elverman failed in claiming that the alleged facts didn’t constitute a “continuing offense.”

Elverman raised two statute of limitation issues. First, he maintained that only the last two checks written in September 2004 fell within the six-year statute of limitations. The court countered that because this was charged as single count encompassing a continuing course of conduct, the statute does not run until the last act.

The second statute of limitations claim was that the limitations period had expired because even though the complaint was timely filed, the information was not, and no warrant was issued.

The court cited case law that the filing of a complaint is sufficient to commence a criminal case, tolling the statute of limitations. Moreover, Elverman voluntarily appeared with counsel at the initial hearing the day after the complaint was filed, obviating the need for a warrant.

Elverman next averred that venue in Milwaukee was improper because neither of the September 2004 checks was negotiated in Milwaukee County. The court gave short shrift to this contention, noting that across the 18 months of his conduct, it was undisputed that at least one of his acts had occurred in Milwaukee County.

Elverman’s fourth issue was that he was entitled to a unanimity jury instruction for each individual act of check cashing. Similar to his other arguments, this one failed to account for the fact that he was charged in a single count with a continuing course of thievery, not with multiple counts of theft.

The jury was given a unanimity instruction for the single count, and concluded unanimously that Elverman had committed the crime of theft and that the theft had exceeded a total value of $10,000. There was no trial court error, nor was his protection against duplicity violated.

Elverman next argued that the evidence was insufficient to prove two of the elements of the crime of theft: that the widow could not consent to the checks she signed and that he could not know of her non-consent. The appellate court reviewed the testimony of two of her treating doctors, including the one who issued the certificate of incapacity, as well as the testimony of the widow’s caretaker.

This constituted “ample” evidence that the widow was incapable of consenting due to her impaired mental functioning. And Elverman knew of her mental state based on receiving the certificate of incapacitation as well as the ongoing communications from the caretaker.

Lastly, Elverman claimed his trial counsel was ineffective for failing to raise, develop or preserve the arguments Elverman raised on appeal. Since he did not develop that argument, the court sounded the death knell for it.

Commentary

Elverman breathes new life into the adage that he who represents himself has a fool for a client. For 10 years he has been unsuccessfully defending himself against allegations of dishonesty in his law firms, in disciplinary proceedings and in courts, and has ended up without a law license and with an unreversed felony conviction.

His assertion on appeal that he didn’t know of the widow’s inability to consent flies in the face of reason, and betrays his incapacity to acknowledge and have remorse for his blatant wrongdoing.

Accordingly, I expect he will file a petition for review of the Court of Appeals’ decision.


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