On Point blog, page 38 of 118
SCOTUS discusses standard of review for mixed questions of law and fact
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.
Inmate’s previous motions didn’t bar habeas petition challenging implementation of sentences
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 Gregory S. Gorak v. Michael Meisner, Warden, 2017AP39, District 1, 2/27/18 (not recommended for publication); case activity (including briefs)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.
SCOTUS: Guilty plea doesn’t forfeit challenge to constitutionality of statute of conviction on appeal
Rodney Class v. United States, USSC No. 16-424, 2018 WL 987347 (February 21, 2018), reversing United States v. Class, (unreported) (D.C. Cir. 2016); Scotusblog page (inlcuding links to briefs and commentary)
“The question [in this case] is whether a guilty plea by itself bars a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal. We hold that it does not. Class did not relinquish his right to appeal the District Court’s constitutional determinations simply by pleading guilty.” (Slip op. at 3).
Court of appeals affirms reduction of sentence credit, scolds counsel for appellant and respondent
State v. Lance P. Howard, 2017AP677-688-CR, 2/21/18, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
How to irritate the court of appeals. If you haven’t figure that out yet, read this opinion.
Video of battery by juvenile supports trial court’s rejection of self-defense claim
State v. J.D.V., 2017AP1057, District 3, 2/13/18 (one-judge decision; ineligible for publication); case activity
J.D.V. (given the pseudonym “Joseph” by the court) was adjudged delinquent for punching Thomas, another juvenile, in the head outside of school. The incident was recorded by Charles, another student, using his electronic device. Based primarily on that recording the trial court rejected Joseph’s self-defense claim—rightly so, says the court of appeals.
Court of appeals clarifies “guilty plea waiver” rule, says lawyers needn’t advise clients about DACA consequences of plea
State v. Marcos Rosas Villegas, 2018 WI App 9; case activity (including briefs)
This opinion resolves 2 issues worthy of publication and has already generated a petition for review (from an earlier version of the opinion, which was withdrawn and has now been replaced). According to the court of appeals, an attorney does not perform deficiently by failing to inform his client, an undocumented immigrant, that a plea would render him inadmissible to the U.S. and ineligible for DACA. Furthermore–for the first time–the court of appeals holds that the “guilty plea waiver” rule applies to claims of ineffective assistance of counsel, unless such a claim is offered as a reason to overturn the plea itself.
Defense win on sufficiency of evidence for conspiracy to deliver THC and on mootness!
State v. August D. Genz, 2016AP2475-CR, District 3, 1/30/18 (not recommended for publication); case activity (including briefs)
A jury convicted Genz of (1) possession with intent to deliver amphetamine and (2) conspiracy to deliver THC. The court imposed concurrent, stayed sentences with 1 year of probation. Genz appealed the 2nd conviction, but he completed his term of probation while the appeal was pending. The State moved to dismiss on grounds of mootness. The court of appeals said, essentially, no way. The appeal was not moot because a felony conviction has collateral consequences. Furthermore, the State did not offer sufficient evidence to prove conspiracy to deliver THC. Conviction reversed!
COA: Circuit court didn’t err in deciding record had been reconstructed
State v. Morris Rash, 2016AP2494-CR, District 1, 1/30/18 (not recommended for publication); case activity (including briefs)
Morris Rash was convicted of substantial battery and being a felon in possession of a firearm after a jury trial. When it came time for postconviction proceedings and/or an appeal, it turned out that some photographs used as exhibits at the trial were not in the court record.
COA: Expert testimony not needed to show mental harm to child
State v. Darrin K. Taylor, 2016AP1956 & 1957, 12/20/2017, District 2 (not recommended for publication); case activity (including briefs)
Taylor was convicted at trial of seventeen charges related to sexual assault of a child, S.F. On appeal he attacks only his conviction for causing mental harm to a child and the associated bail-jumping count. He argues the evidence was insufficient to show that S.F. suffered “mental harm” as it is defined in the statute, or that his post-assault contact with her was a substantial cause of said harm.
Court of appeals asks SCOW: Is a search warrant for putting a GPS on a car void if not executed within 5 days?
State v. Johnny K. Pinder, 2017AP208-CR, District 2, certification filed 12/13/17, certification granted 3/14/18, affirmed, 2018 WI 106; case activity (including briefs)
Issue (from certification):
If a search warrant issued under WIS. STAT. § 968.12 for the placement and use of a GPS tracking device on a motor vehicle is not executed within five days after the date of issuance per WIS. STAT. § 968.15(1) is the warrant void under § 968.15(2), even if the search was otherwise reasonably conducted?