On Point: A. Right to appeal

Marathon County v. D.K., 2020 WI 8, 2/4/2020, affirming an unpublished court of appeals decision; 2017AP2217; (case activity)

The caption is the most confusing part of this opinion:

ZIEGLER, J., delivered the majority opinion of the Court with respect to Parts I., II., III., IV.A., IV.B., and IV.C.1, in which ROGGENSACK, C.J., REBECCA GRASSL BRADLEY, KELLY, and HAGEDORN, JJ., joined, the majority opinion of the Court with respect to Part V., in which ROGGENSACK, C.J., KELLY and HAGEDORN, JJ., joined, and an opinion with respect to Parts IV.C.2., and IV.D., in which ROGGENSACK, C.J., and HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined.

But it’s not as bad as it looks! And this decision makes (some) law: specifically, that an appeal of an original commitment is not moot where the commitment has the continuing effect of forbidding its subject to possess firearms.

La Crosse County v. J.M.A., 2018AP1258, 11/21/19, District 4 (one-judge decision; ineligible for publication); case activity

J.M.A. appeals his recommitment under ch. 51. He argues the psychiatrist who was the sole witness at his trial provided only conclusory testimony on dangerousness; the court of appeals disagrees.

Portage County v. J.W.K., 2019 WI 54, 5/21/2019, affirming an unpublished order dismissing appeal as moot; case activity

Practitioners know that it’s rare to get from final judgment to court of appeals decision on the merits in less than a year. Just the ordinary statutory time frames for appointment of counsel, transcripts, motions or notices, transmitting the record, and briefing schedules can easily eat up well over half that time. So, an extension of a ch. 51 commitment–which is statutorily limited to one year in length–will often, if not invariably, be over by the time a decision can be reached. The supreme court now decides that, in some cases at least, this makes appeals of those extensions moot.

Waukesha County v. W.E.L., 2018AP1486, District 2, 5/15/19 (one-judge decision; ineligible for publication); case activity

While W.E.L.’s challenge to his initial six-month-long commitment and medication orders was pending, both orders were extended by stipulation for 12 months. He didn’t challenge the extension, so his appeal of the initial orders is moot.

Garza v. Idaho, USSC No. 17-1026, reversing Garza v. State, 405 P.3d 576 (Idaho 2017);  Scotusblog page (includes links to briefs and commentary)

This case involved two plea agreements that included clauses stating that Garza waived his right to appeal. After sentencing, Garza told his lawyer that he wanted to appeal, but his lawyer refused due to the plea agreement. Garza filed claim for ineffective assistance of counsel. Siding with Garza, SCOTUS held that counsel performed deficiently and that “prejudiced is presumed” because the failure to file a notice of appeal deprived Garza of an appeal altogether. Opinion at 1. 

State v. Justin A. Braunschweig, 2018 WI 113, 12/21/18, affirming an unpublished court of appeals decision; case activity (including briefs)

Braunschweig was convicted in 2011 of causing injury by intoxicated operation of a vehicle. The conviction was expunged under § 973.015. In 2016 he was charged with operating while intoxicated and with a prohibited alcohol content, both as a second offense because of the 2011 conviction. The supreme court rejects his claim that the expunged conviction can’t be a predicate offense under § 343.307(1).

Gilberto Garza, Jr. v. Idaho, USSC No. 17-1026, certiorari granted 6/18/18

Question presented:

Does the “presumption of prejudice” recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), apply where a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver?

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!

State v. Jeffrey S. Roehling, 2016AP35-CR, District 3, 10/3/17, (not recommended for publication), case activity (including briefs)

Haven’t seen defense win in awhile–especially not regarding postconviction procedure. The court of appeals first rejects the State’s contention that a defendant who fails to request an extension of the 60-day deadline for a circuit court to decide a postconviction motion forfeits his grounds for challenging the decision. Next it holds that Roehling’s posctconviction motion alleged facts sufficient to warrant a hearing on his ineffective assistance of counsel claim. That makes this decision a “win win.”

State v. Peter J. Long, 2016AP729, 3/28/17, District 1 (one-judge decision, ineligible for publication); case activity (including state’s brief)

Peter Long filed a Wis. Stat. § 974.06 arguing that his sentence for OWI-4th should be commuted or modified to the maximum sentence for an OWI-3rd, because one of his priors was uncounseled.