On Point: 1. Appeals

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State v. Marshun Dante Jackson, 2019AP2091, 2/17/21, District 3 (not recommended for publication); case activity (including briefs)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

State v. James Lee Ballentine, 2019AP1597, 1/20/21, District 2 (not recommended for publication); case activity (including briefs)

Ballentine stood trial for three counts of delivering drugs. The charges arose from controlled buys; James was the informant and buyer. Ballentine’s defense was that James–seeking mitigation in his own drug charges–had framed Ballentine. Ballentine’s theory was that James had come into the alleged sales with the drugs already on him, and that he had concealed this fact by hiding them in such a way that the supervising police officers’ pat-downs would not find them. As part of this defense, Ballentine wished to adduce testimony that James had successfully concealed drugs from a police pat-down before, during an arrest; the drugs were eventually recovered after James ditched them in the police station.

Greer v. United States, No. 19-8709, cert. granted 1/11/21; SCOTUSblog page

Question presented: 

Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial.

United States v. Gary, No. 20-444, cert granted 1/8/21; SCOTUSblog page

Question presented:

Whether a defendant who pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. 922(g)(1) and 924(a), is automatically entitled to plain error relief if the district court did not advise him that one element of that offense is knowledge of his status as a felon, regardless of whether he can show that the district court’s error affected the outcome of the proceedings.

State v. Benjamin J. Klapps, 2021 WI App 5; case activity (including briefs)

The circuit court granted the state’s petition to revoke Klapps’s conditional release under § 971.17(3)(e), citing in particular the report of a prior examiner who didn’t testify at the revocation hearing and whose report wasn’t entered into evidence. (¶¶2-13). Klapps argued the trial judge had prejudged his case based on the previously filed report,