On Point blog, page 1 of 1
Important 980 defense win: SCOW holds DOC must turn over data on (low) statewide recidivism rate
State v. Anthony James Jendusa, 2021 WI 24, affirming a court of appeals order denying interlocutory appeal; case activity (including briefs)
This litigation has been procedurally weird, as we’ve discussed before, but SCOW’s decision on the merits may turn out to be a momentous one for the future of ch. 980.
Abrahamson criticizes Wisconsin Supreme Court’s “untoward dismissal” of fully briefed and argued case, offers advice on preserving issues
Maya Elaine Smith v. Jeff Anderson, 2017 WI 43, dismissing a petition for review of 366 Wis. 2d 808, 874 N.W.2d 347 (Ct. App. 2016)(unpublished); case activity (including briefs)
Recently, SCOW has marched ahead and decided issues that the parties did not properly preserve or brief–to the detriment of indigent defendants. Recall what happened a few weeks ago in State v. Denny and earlier in State v. Sulla and State v. Smith. But in this case, after briefing and argument by the parties and an amicus curiae, a 3-justice majority (Ziegler and RG Bradley didn’t participate) showed remarkable restraint. It issued a per curiam opinion dismissing a petition for review as improvidently granted because nobody preserved an issue the court of appeals declined to decide. The upshot? It appears that SCOW has rescued West Bend Mutual Insurance Company from an appellate blunder and possible defeat. The blunder presents a teachable moment for appellate lawyers trying to preserve issues for supreme court review.
SCOW overrules 12-year-old precedent, denies postconviction DNA testing
State v. Jeffrey C. Denny, 2017 WI 17, reversing a published court of appeals decision; 2015AP202-CR, 2/28/2017; case activity (including briefs)
In State v. Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884, the supreme court unanimously held that Wis. Stat. § 974.07, the postconviction DNA testing statute, provides two routes for a convicted defendant seeking exoneration: a defendant satisfying certain basic criteria may pay for his own testing of physical evidence; one making a stronger showing of potential significance may secure such testing at public expense. The court now closes off the first, self-paid route.
Justice Abrahamson says “scent of lawlessness” lingers in SCOW
On December 22, 2016, SCOW issued Regency West Apartments LLC v. City of Racine, 2016 WI 99 concerning a tax appeal. Justice Abrahamson filed a dissent which, among other things, sought to inform litigants and lawyers about a procedure the justices us when deciding petitions for review by email. This is what she wrote:
SCOW clarifies Nelson/Bentley test and read-in procedure; muddles rules on petitions for review again
State v. Richard J. Sulla, 2016 WI 46, 6/14/16, reversing an unpublished per curiam court of appeals decision; case activity (including briefs)
Sulla entered a plea agreement requiring him to plead “no contest” to two counts and the State to dismiss and “read in” two other counts for purposes of sentencing and restitution. But after he was sentenced to 20 years of imprisonment, Sulla moved for plea withdrawal arguing that he was misinformed of, and did not understand, the effect that a read-in charge could have at sentencing. The circuit court denied the motion without a hearing. Don’t be fooled. SCOW’s decision here affects more than plea withdrawal. It changes appellate procedure.
Wisconsin Supreme Court: Discretionary authority to dismiss refusal charges is limited to cases in which defendant pleads guilty to underlying OWI
State v. Brandon H. Bentdahl, 2013 WI 106, reversing an unpublished court of appeals decision; opinion for a unanimous court by Justice Crooks; case activity
In State v. Brooks, 113 Wis. 2d 347, 348-49, 335 N.W.2d 354 (1983), the supreme court held that a circuit court has discretionary authority to dismiss a refusal charge under § 343.305 after the defendant has pleaded guilty to the underlying OWI.
Petition for Review Deadline – Prison Mailbox Rule, Retroactivity
State ex rel Norman O. Brown v. Bradley, 2003 WI 14, on original petition for writ of habeas corpus
For Brown: Greg J. Carman
Issue/Holding:
¶1. The Petitioner, Norman O. Brown, seeks reinstatement of his petition for review which was previously dismissed as untimely filed. Brown contends that this court should apply retroactively the tolling rule for pro se prisoners that it adopted in State ex rel.
Petition for Review Deadline — Pro Se Prisoner “Mailbox Rule”
State of Wisconsin ex rel. Eugene Nichols v. Litscher, 2001 WI 119
For Nichols: Jeffrey O. Davis, Daniel J. LaFave
Issue: Whether a pro se prisoner’s petition for review may be accepted for filing in the supreme court, even though received after the filing deadline, where it was delivered to prison authorities for mailing before the deadline.
Holding:
¶11 We decline to interpret the term ‘file’
Petition for Review — Deadline Lost through Clerical Error — Reinstate Via Habeas
State ex rel. Jose DeJesus Fuentes v. Court of Appeals, 225 Wis.2d 446, 593 N.W.2d 48 (1999), original action
For Fuentes: Robert T. Ruth.
The supreme court rectifies loss of the petition for review deadline caused by the court of appeal’s clerical error (failure to mail a copy of decision to appellate counsel). The remedy, which Fuentes followed, is to seek habeas relief in the supreme court. The court grants his petition,
Waiver of Issue: Failure to Raise in PFR
State v. Jene R. Bodoh, 226 Wis.2d 718, 595 N.W.2d 330 (1999), affirming 220 Wis.2d 102, 582 N.W.2d 440 (Ct. App. 1998)
For Bodoh: Michael D. Mandelman.
Issue/Holding: Failure to raise an issue in the petition for review waives the right to argue it, though the court may nonetheless reach the merits under certain circumstances:
¶37 We decline to address this issue.