On Point: 1. Appeals

Percell Dansberry v. Randy Pfister, 7th Circuit Court of Appeals No. 13-3723, 9/15/15

The judge who took Dansberry’s guilty plea understated the mandatory minimum sentence Dansberry faced, and therefore Dansberry’s plea was not entered with a full understanding of the consequences, as required under Boykin v. Alabama, 395 U.S. 238 (1969), and Brady v. United States, 397 U.S. 742 (1970). But the Supreme Court has not held Boykin errors to be structural, so the state court’s rejection of his plea withdrawal motion on harmless error grounds was not an unreasonable application of clearly established federal law.

Review of an unpublished per curiam court of appeals decision; case activity

Issues (copied from the State’s PFR here):

Crimes may be joined in one trial if they are similar or if they are connected as part of a common plan. Here, the court of appeals reversed Salinas’ conviction because it decided allegations that he sexually assaulted his girlfriend’s child, and that he intimidated his girlfriend and her child, were not similar acts or connected as part of a common plan. Is the court of appeals’ decision in conflict with the well-established rule that joinder of charges must be broadly construed?

Improper joinder is subject to harmless error review. Here, the evidence of sexual assault and victim intimidation was overhwleming. Did the court of appeals err in concluding that the joinder of the charges was not harmless?

State v. Lonel L. Johnson, Jr., 2014AP2888-CR, District 3, 9/15/15 (not recommended for publication); case activity

High fives for the defense! The domestic abuse repeater enhancer applied to this defendant increased his maximum penalty for the charged offense. Thus, the court of appeals held (and the State conceded) that the jury had to find, beyond a reasonable doubt, that his underlying conduct qualified as an act of domestic abuse. That’s what Apprendi v. New Jersey, 530 U.S. 466 (2000) requires, but it didn’t happen here.  The real win, however, is that for once the State did NOT prevail on its claim of harmless error!!

Mark D. Jensen v. Marc Clements, 7th Circuit Court of Appeals No. 14-1380, 9/8/15, affirming Jensen v. Schwochert, No. 11-C-0803 (E.D. Wis. Dec. 18, 2013)

At Jensen’s trial for the murder of his wife Julie the State introduced Julie’s handwritten letter to the police, written two weeks before her death, in which she wrote she would never take her life and that her husband should be the suspect if anything should happen to her. The Wisconsin Court of Appeals assumed the admission of the letter violated Jensen’s right to confrontation but found the error harmless. The Seventh Circuit holds that the court of appeals’ decision was an unreasonable application of the Chapman v. California, 386 U.S. 18 (1967), harmless error standard, and that the erroneous admission of the hearsay evidence had a substantial and injurious influence or effect in determining the jury’s verdict, thus satisfying the actual prejudice standard under Brecht v. Abrahamson, 507 U.S. 619 (1993).

Village of Thiensville v. Conor B. Fisk, 2015AP576-FT, District 2, 8/26/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Sending the opposing party with a copy of a notice of appeal by email attachment satisfied § 800.14(1)‘s requirement that the appellant “giv[e] the municipal judge and other party written notice of appeal within 20 days of the judgment or decision.”

State v. Susan P. Resch, 2015AP51-CR, District 4, 8/20/15 (one-judge decision; ineligible for publication); case activity (including briefs)

¶2     Resch fails to sufficiently develop any legal argument based on concrete references (much less based on proper citations) to pertinent portions of the record and the application of governing legal authority, and I reject her arguments on that basis. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (court of appeals may decline to review inadequately developed issues). Any other approach would require me to abandon my neutral judicial role by becoming Resch’s advocate.

Oneida County v. Randall J. Busarow, 2014AP2766, District 3, 7/28/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Though there wasn’t direct evidence of exactly when Busarow drove and whether he was intoxicated at that time, the state need not prove the elements of an offense only by direct evidence; reasonable inferences from the evidence may suffice. Bautista v. State, 53 Wis. 2d 218, 223, 191 N.W.2d 725 (1971). The evidence in this case supported the reasonable inferences that Busarow was intoxicated when he drove and that he drove within three hours of the blood test.

State v. Maltese Lavele Williams, 2015 WI 75, 7/10/15; majority by Prosser: concurrence by Abrahamson; on certification from the court of appeals; case activity (including briefs)

All jury instruction errors are to be assessed for whether the error was harmless, the supreme court declares, including errors describing a theory of criminal culpability that was not presented to the jury or omitting a valid theory that was presented to the jury. The court therefore abrogates State v. Wulff, 207 Wis. 2d 143, 557 N.W.2d 813 (1997), which held that a jury instruction accurately setting out a legal basis for liability that does not fit evidence presented at trial should be assessed for whether the evidence was sufficient to support the basis for liability in the instruction.

State v. Robert C. Blankenheim, 2015AP239-CR, District 2, 7/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Blankenheim’s challenges his OAR conviction by arguing that he was unlawfully stopped, that the evidence wasn’t sufficient to prove operation on a highway, and that the police officer wasn’t a credible witness. The court of appeals disagrees “on all points….” (¶1).

State v. Corey R. Kucharski, 2015 WI 64, reversing an unpublished court of appeals decision; majority opinion by Crooks; dissent by Bradley (joined by Abrahamson);  case activity (including briefs)

If you thought defending a discretionary reversal in SCOW was tough before, it just got tougher. Kucharski pled “no contest” to killing his parents but claimed he was not guilty by reason of mental illness due to schizophrenia. Voices told him to commit the murders. He had not been diagnosed with schizophrenia, but 3 doctors supported his NGI defense. The State presented no witnesses, yet the circuit court found that Kucharski failed his burden of proof. The court of appeals granted a new trial in the interests of justice. In a split decision, SCOW reversed and changed the “discretionary reversal” standard.