On Point blog, page 1 of 4
Failure to file all “administrative-process documents” dooms petition for writ of certiorari
Artillis Mitchell v. Chris S. Buesgen & Kevin A. Carr, 2022AP1076, 2/22/24, District 4 (recommended for publication); case activity
This case concerns Mitchell’s appeal from the circuit court’s order dismissing his petition for a writ of certiorari. We recognize the case is a bit outside of our normal coverage, but in addition to the fact that D4 has recommended this decision for publication, the case presents an interesting, if somewhat technical, application of law to a factual scenario that is likely of some interest to our readers. The bottom line is that the denial of Mitchell’s petition is affirmed, despite the fact that he indisputably filed proof that he fully exhausted all available administrative remedies, because he failed to file “all documents related to the administrative process.” Op., ¶33-34.
COA remands for “nunc pro tunc” competency hearing
State v. Michele M. Ford, 2022AP187 & 2022AP188, 10/31/23, District I (one-judge decision; ineligible for publication); case activity
The takeaway from this procedurally convoluted case is that Ford succeeds in her appeal from an order finding her incompetent to stand trial in two misdemeanor cases. Specifically, the court reverses and remands for a “nunc pro tunc” competency hearing at which the circuit court will have to determine whether Ford was competent to proceed without relying on trial counsel’s statements to the evaluator, which the court holds violated the attorney-client privilege and amounted to ineffective assistance of counsel. (Op., ¶26).
Court of appeals takes hard line on appeals from municipal court decisions
City of Port Washington v. Sandra J. Koziol, 2021AP449-450-FT, 10/6/21, District 2 (1-judge opinion; ineligible for publication); case activity (including briefs)
Each year, Wisconsin’s municipal courts resolve close to half of a million cases, including traffic offenses, OWIs, and other quasi-criminal matters. See data here. A party aggrieved by a municipal court judgment has a statutory right to appeal it. This unpublished opinion resolves an issue of first impression regarding the procedure for appealing municipal court judgments in a way that restricts that right and violates the statute.
“Written notice of appeal” of muni court judgment needn’t be “Notice of Appeal” form
City of Milwaukee v. David B. Munzinger, 2018AP2186, 7/23/2019, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)
Munzinger fought his OWI citation in the municipal court and lost; he filed an appeal to the circuit court pursuant to Wis. Stat. § 800.14. To do this, his counsel filed a form in the circuit court captioned “Notice of Appeal” (probably this one, provided by the municipal court). He also emailed the city attorney alerting him to the appeal and apparently spoke to him about it. But, his email didn’t include a copy of the “Notice of Appeal” form. The city moved to dismiss and the circuit court granted the motion.
Victim’s list of corrections not exculpatory; DA can file NOA; one appellate judge can deny motion to dismiss
State v. Karl W. Nichols, 2016AP88-CR, 3/20/17, District IV (not recommended for publication); case activity (including briefs)
Nichols was convicted, at trial, of a sexual assault of a four-year-old child; the child did not report the alleged assault to anyone until she was 10 years old. Nichols’s postconviction motion alleged that the state had failed to turn over a list, prepared by the child, of changes she wished to make to statements she made during her first forensic interview. The circuit court found the state had acted in bad faith in withholding the list, vacated Nichols’s conviction, and dismissed the charges with prejudice. The court of appeals now reverses and remands for the circuit court to consider Nichols’s sentence modification claim.
Notice of appeal from municipal court judgment may be served on opposing counsel by email
Village of Thiensville v. Conor B. Fisk, 2015AP576-FT, District 2, 8/26/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Sending the opposing party with a copy of a notice of appeal by email attachment satisfied § 800.14(1)‘s requirement that the appellant “giv[e] the municipal judge and other party written notice of appeal within 20 days of the judgment or decision.”
SCOW clarifies the forum and procedure for raising a claim that counsel was ineffective for failing to file notice of intent to pursue postconviction relief
State ex re. Lorenzo D. Kyles v. William Pollard, 2013 WI 38, reversing an unpublished court of appeals decision; case activity
Settling a somewhat obscure but still important point of appellate procedure, the supreme court unanimously holds that when a defendant seeks to reinstate the deadline for filing a notice of intent to pursue postconviction relief under § 809.30(2)(b) based on an allegation that counsel was ineffective for failing to file a timely notice, he should file a habeas petition in the court of appeals as provided under State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).
Court of appeals bungles denial of motion for reconsideration of decision on petition for writ coram nobis
Sawyer County v. Maurice J. Corbin, 2013AP650; 1/22/14; District 3 (one-judge opinion ineligible for publication); case activity
This is an odd little case with some interesting potential. In 2004, Corbine was arrested for OWI and refused to submit to a chemical blood test under implied consent law. Supposedly Corbine received a “notice of intent to revoke operating privilege” but failed to request a refusal hearing, so the court entered default judgment revoking his license.
State ex rel. Lorenzo Kyles v. William Pollard, 2012AP378-W, petition for review granted 12/17/13
Review of an unpublished court of appeals decision that is not available online; case activity
Issue: Whether a client alleging ineffective assistance of counsel based on his trial lawyer’s unavailability or failure to respond to a request for an appeal during the 20-day period for filing a notice of intent to pursue postconviction must raise his claim via a § 974.06 motion or a Knight petition?
SCOW is wading into a procedural thicket with this case.
Dismissal of pro se appeal affirmed for lack of service
City of West Allis v. Brandon J. Michaels, Appeal No. 2013AP710, District 1, 11/13/13; (one-judge decision, ineligible for publication); case activity
Michaels tried to appeal a municipal court conviction for disorderly conduct to the circuit court, per Wis. Stat. § 800.14. He consulted the clerk of court and followed all of the instructions he was given. That is, he filed a notice of appeal with the circuit court and served another one upon the City of West Allis Police Department.