On Point: 1. Appeals

Sauk County v. R.M.C., 2017AP1860, May 3, 2018, District 4 (not recommended for publication); case activity

To appoint a guardian of the person or estate, the circuit court has to find 4 elements by clear and convincing evidence. This appeal focuses on §54.10(3)(a)2–the second element, which states:

[B]ecause of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that the individual is unable to meet the essential requirements for his or her physical health and safety. WIS. STAT. § 54.10(3)(a)2.

State v. William H. Craig, 2017AP651-CR, 4/17/18, District 3 (not recommended for publication); case activity (including briefs)

Criminal defendants have a broad right to pretrial discovery under §971.23(1), but that right is tempered by  §971.23(6), which authorizes the circuit court to enter protective orders for good cause. The court is not required to hold an evidentiary hearing before granting a motion for protective order. But if it denies a hearing, it must explain its rationale. The circuit court did not do that here, so the court of appeals reversed and remanded this case for further proceedings.

State v. David McAlister, Sr., 2018 WI 34, 4/17/18, affirming an unpublished court of appeals order, 2014AP2561; case activity

A jury convicted McAlister in 2007 of three counts having to do with an attempted and a completed armed robbery. The state’s case was founded on the testimony of two men (Jefferson and Waters) who had committed the crimes: they said McAlister was also involved. At trial, McAlister’s counsel impeached them by showing they had received consideration from the state in exchange for their testimony. But he couldn’t provide any direct evidence they had lied. Now he can, but the SCOW majority says it’s not good enough, even to get a hearing on his motion.

State v. Devin T. White, 2016AP119-CR, 4/10/18, District 1, (not recommended for publication); case activity (including briefs)

White was convicted of 1st-degree reckless homicide. He argued that the trial court misapplied the law governing self-defense and improperly instructed the jury. The court of appeals repeatedly struggled to determine the thrust of his argument, but it appeared to be this:

¶15 Under White’s interpretation of the law, the State must prove beyond a reasonable doubt that he did not have these actual beliefs; therefore, the trial court erred in failing to instruct the jury of the State’s burden and that White could not be found guilty if the State did not prove he did not have these actual beliefs. Under White’s interpretation of the law, his actual belief controls, not whether his belief was reasonable.

The court of appeals also admonished White’s appellate counsel.

Dane County DHS v. C.B., 2018AP38 & 39, 4/9/2018, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Yes, that headline is correct: The circuit court did not terminate C.B.’s parental rights, and the court of appeals rejects the County’s challenges to the circuit court’s decision (and admonishes the County’s lawyer for an improper argument).

This new law review article by Daniel Epps examine the subject in depth. Consider this excerpt from the abstract:

Judges and commentators sharply disagree about which (and even whether) constitutional errors can be harmless, how to conduct harmless-error when it  analysis applies, and, most fundamentally, what harmless constitutional error even is-what source of law generates it and enables the Supreme Court to require its use by state courts. This Article offers a new theory of harmless constitutional error,

State v. D.M.S.W., Sr., 2018AP124-125, 4/3/18, District 1, (1-judge opinion, ineligible for publication); case activity

¶9 We conclude that D.M.W., Sr. waived his right to appellate review of the circuit court’s decision to sua sponte sever the parents’ hearings. Prior to the fact finding hearings, the circuit court informed D.M.W., Sr. that it would sever the fact finding hearings because the parents had a history of domestic abuse and the court did not find it appropriate to conduct fact finding simultaneously. D.M.W., Sr., pro se at the time, did not object. The court also explained its decision to standby counsel and asked counsel to explain the severance issue to D.M.W., Sr. The court informed the parties that they would have an opportunity to address any concerns pertaining to severance. D.M.W., Sr. did not raise any concerns as to this issue. Nor did counsel raise any objections to the severance of the parents’ disposition hearings after the court explained the basis for its decision. . . .It is well established law that an issue not raised in the circuit court is deemed waived for appellate review. See State v. Nelson, 146 Wis. 2d 442, 457, 432 N.W.2d 115 (Ct. App. 1988) . . .

State v. C.L.K., 2017AP1414, petition for review of an unpublished court of appeals opinion granted 3/14/18; case activity
Issues:

1. Where, during the grounds phase of a TPR trial, the circuit court errs by directing a verdict in favor of the State without giving the respondent an opportunity to present evidence, has the court committed structural error, or is the error subject to a harmless error analysis?

2. If the error in this case is not structural, then was it harmless?

On March 5, 2018, the Supreme Court decided U.S. Bank N.A. v. Village at Lakeridge, USSC No. 15-1509, 2018 WL 1143822, a bankruptcy case that we note here solely because it addresses a narrow issue that can matter to appellate litigators, civil and criminal: What is the standard of appellate review of mixed questions of law and fact? The answer: Well, it “depends,” though less so in the kind of constitutional questions criminal litigators often face.

State ex rel. Gregory S. Gorak v. Michael Meisner, Warden, 2017AP39, District 1, 2/27/18 (not recommended for publication); case activity (including briefs)

The circuit court denied Gorak’s petition for a writ of habeas corpus after deciding it was procedurally barred because the issues it raised had already been litigated and decided.  The court of appeals holds that is not the case.