On Point: 1. Appeals

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.

State v. Kenyon D. Grant, 2020AP785, 3/9/21, District 1 (not recommended for publication); case activity (including briefs)

McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018) held that trial counsel cannot concede guilt over his client’s express objection. This would deny the client his 6th Amendment right to determine the objective of his defense and require an automatic new trial. Grant raised a McCoy claim in this case. It failed because trial counsel testified that Grant did not oppose his concession strategy and objected only after hearing the State’s evidence against him.

Jefferson County v. S.M.S., 2020AP814, 3/11/21, District 4 (1-judge opinion, ineligible for publication); case activity

It is blackletter law that the probable cause hearing for a Chapter 51 commitment must be held within a statutorily-prescribed time from the subject individual’s detention or the circuit court must dismiss the proceeding for lack of competency to adjudicate it. See §51.20(7)(a) and Dodge Cnty. v. Ryan E.M., 2002 WI App 71, ¶5, 252 Wis. 2d 490, 642 N.W.2d 592. In this case, the court of appeals held that the Ryan E.M. rule did not apply because the individual’s conduct (he was pro se) made it necessary for the circuit court to adjourn the probable cause hearing beyond the 72-hour period expired.

State v. Donald P. Coughlin, 2019AP1876-CR, District 4, 3/4/21 (not recommended for publication), state’s petition for review granted 9/14/21; case activity (including briefs)

In 2010 Coughlin was charged with over 20 counts of having sexual contact with three different children during various periods between 1989 and 1994. The court of appeals holds the evidence was insufficient to convict him of the counts involving  two of the children.

State v. Greg Douglas Griswold, 2020AP1598, District 4, 3/4/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Griswold was convicted of violating § 26.12(5)(b) by starting a fire in an “extensive forest protection area” without a permit. The statute excepts fires started for warmth, and Griswold claimed that’s what he was doing. When evidence supports more than one reasonable inference, the reviewing court accepts the inference drawn by the trier of fact, see, e.g., State v. Poellinger, 153 Wis. 2d 493, 504, 451 N.W.2d 752 (1990), and under that standard the trial court reasonably rejected Griswold’s defense.

State v. Timothy D. Wright, 2020AP1578, 2/25/2021, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Wright worked at Christmas Mountain. Over the course of a couple of months he allegedly directed several racist and threatening rants at colleagues, including threats to kill some of them. A supervisor eventually called the police, and Wright was fired and charged with four counts of disorderly conduct. He eventually pleaded to two with the other two read in. The circuit court ordered Wright to pay $14,755 in restitution to the corporation that owns Christmas Mountain at $100 per month. Wright argues this was improper for three reasons: because the corporation was not statutorily a “victim” of his conduct; because the claimed damages–the cost to hire armed guards after he was fired–were not “special damages … which could be recovered in a civil action”; and because the circuit court failed to consider his inability to pay.

State v. Decarlos K. Chambers, 2019AP411-CR, 2021 WI 13, 2/23/21, affirming a per curiam court of appeals opinion,  case activity (including briefs)

SCOTUS recently held that when a client expressly asserts that he wants to maintain his innocence, defense counsel cannot override that objective and concede guilt. If counsel does, a structural error occurs, and the client automatically gets a new trial. McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018). This appeal had the potential to clarify whether McCoy altered Wisconsin law on this subject.  See our post on McCoy. Alas, this decision does not address Wisconsin law. Instead, SCOW unanimously affirms that defense counsel did not concede her client’s guilt.

State v. Marshun Dante Jackson, 2019AP2091, 2/17/21, District 3 (not recommended for publication); case activity (including briefs)

Jackson pleaded to being part of a conspiracy to commit fraud (passing bad checks) against a bank in Dunn County. Then he was charged in St. Croix county with committing fraud against a bank there (initially this was also charged as a conspiracy, but ultimately he pleaded to the fraud itself as party to the crime). Both offenses occurred on the same date, and Jackson claims that the dual prosecutions violated both his constitutional right against double jeopardy and a statutory provision forbidding conviction of both conspiracy to commit a crime and the underlying crime itself. The court of appeals rejects both claims, holding that the conspiracy covered by the Dunn County charge didn’t encompass the acts in St. Croix County.

Adams County v. D.R.D., 2020AP1426, 1/28/21, District 4; case activity

This appeal posed a simple question about due process in a Chapter 51 commitment proceeding. Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972) held that the 14th Amendment requires the county to give a person sufficient notice of the legal standard under which she is being detained so that she has a reasonable opportunity to prepare a defense. D.R.D. raised this issue on appeal but since trial counsel had not preserved the objection, the court of appeals held the issue forfeited.

State v. Mercado, 2021 WI 2, 1/20/21, reversing a published court of appeals decision; case activity (including briefs)

Mercado stood trial for sexual assault of three young girls. A video of each girl’s forensic interview was played for the jury pursuant to Wis. Stat. § 908.08. Mercado contends that none of the videos were properly admitted. The supreme court holds that he forfeited most of his challenges, and rejects those it considers.