On Point blog, page 13 of 25
Court of appeals affirms plea though defendant misunderstood appellate rights; trips over law governing plea withdrawal and IAC
State v. Jeromy Miller, 2014AP1246-CR, 2/24/15, District 2 (not recommended for publication); click here for docket and briefs
This decision smells like SCOW bait. Miller pleaded guilty believing that he had the right to appeal the circuit court’s denial of his pre-trial motion to dismiss. Both the court and defense counsel told him so. The State concedes they were wrong. The court of appeals held the error harmless because the motion had no merit. In doing so it bungled case law re plea withdrawal and the “prejudice” prong of an ineffective assistance of counsel claim.
Proceeding to sentencing despite misunderstanding about plea agreement defeats claims for plea withdrawal, resentencing
State v. Nelson Luis Fortes, 2015 WI App 25; case activity (including briefs)
A “misunderstanding” about what sentence the state could recommend under the plea agreement did not entitle Fortes to plea withdrawal or resentencing because after the misunderstanding became evident at the sentencing hearing, Fortes elected to proceed rather than seek an adjournment with a possible eye toward plea withdrawal.
Circuit court lacked subjected matter jurisdiction to hear OWI, first offense
City of Stevens Point v. Jared T. Lowery, 2014AP742, 2/5/15; District 4 (1-judge opinion; ineligible for publication); click here for docket and briefs
It seems the City didn’t know of Lowery’s two prior OWI convictions when it charged him with, and obtained a conviction for, OWI first under a city ordinance. Only the State (not a city) may prosecute someone for OWI, third offense. So the circuit court lacked subject matter jurisdiction to try and convict Lowery for OWI first.
Court of appeals rejects multiple-issue challenge to child pornography conviction
State v. Jose O. Gonzalez-Villarreal, 2013AP1615-CR, District 1, 1/27/15 (not recommended for publication); case activity
The court of appeals rejects Gonzalez-Villarreal’s challenge to his conviction for possessing child pornography based on claims that: his right to a speedy trial was violated; discovery restrictions violated his right to equal protection; other acts evidence was erroneously admitted; the trial court rejected his modified jury instruction on possession; the court erroneously exercised its sentencing discretion.
Facts as found by circuit court supported probable cause to arrest for OWI
City of Chippewa Falls v. Douglas M. Buchli, 2014AP1422, District 3, 12/23/14 (1-judge decision; ineligible for publication); case activity
There was probable cause to arrest Buchli for OWI despite the fact the police investigation discovered inconsistent information—including an admission by Buchli’s companion, Mahoney, that she was driving.
Issue raised for the first time on appeal is forfeited
City of Brookfield v. Cassandra L. Gissal, 2014AP1751-FT, District 2, 12/23/14 (1-judge decision; ineligible for publication); case activity
At trial Gissal challenged the admissibility of her statements to police because she wasn’t given Miranda warnings, but the trial court ruled she wasn’t in custody for Miranda purposes. On appeal she abandons this claim and argues instead that allowing the officer to testify to her statements violated her Fifth Amendment privilege and that she wouldn’t have testified at trial if the officer had been barred from relating her statements.
Lower burden of proof at ch. 980 discharge trial doesn’t violate due process
State v. Thornon F. Talley, 2015 WI App 4; case activity
A person committed as a sexually violent person under ch. 980 does not have a due process right to have the state prove at a discharge hearing that he is still a sexually violent person, so the clear and convincing evidence standard under § 980.09(3) is not facially unconstitutional.
Voir dire questions by prosecutor that elicited promise to convict if elements were proven did not deny right to jury trial
State v. Frank M. Zdzieblowski, 2014 WI App 130; case activity
The prosecutor during voir dire elicited a promise from prospective jurors that they would convict if the State proved the elements of the charged crimes beyond a reasonable doubt, and then reminded the jurors of that promise in his rebuttal closing argument. The court of appeals holds the prosecutor’s unobjected-to voir dire questioning and rebuttal closing argument neither rose to the level of plain error nor warranted a new trial in the interest of justice.
Trial counsel’s failure to object to jury instruction deprives appellant of right to challenge sufficiency of evidence
State v. Addison F. Steiner, 2013AP2629-CR, district 4, 10/16/14 (not recommended for publication); case activity
This case raises an issue that even the court of appeals deemed to be of first impression. Does §948.20, which criminalizes abandonment of a child, require an intent to abandon a child permanently, or is leaving a child alone for 1 or 2 hours enough? If the latter, then how is “child abandonment” different from “child neglect” under §948.21? The court of appeals refused to address the issue for reasons that should trouble anyone challenging the sufficiency of the evidence to support a jury verdict.
Counsel wasn’t ineffective for following client’s decision to proceed to trial instead of seeking adjournment
State v. Kenneth A. James, 2013AP2409-CR, District 2, 7/23/14 (not recommended for publication); case activity
James insisted on going to trial even though the transcript from the preliminary hearing hadn’t yet been prepared, so he can’t complain now that trial counsel was ineffective for failing to seek an adjournment so he could get the transcript.