On Point: 46. WI Court of Appeals

Daniel Doubek v. Joshua Kaul, 2020AP704, 3/31/21, District 2, certification granted 6/16/21; decision issued, circuit court reversed, 2022 WI 31; case activity (including briefs)

Issue:

Are Evans v. DOJ, 2014 WI App 31, 353 Wis. 2d 289, 844 N.W.2d 403, and Leonard v. State, 2015 WI App 57, 364 Wis. 2d 491, 868 N.W.2d 186, “good law” in light of the United States Supreme Court’s decision in United States v. Castleman, 572 U.S. 157 (2014)?

Village of Greendale v. Matthew R. Derzay, 2019AP2294, District 1, 3/30/31 (not recommended for publication); case activity (including briefs)

The burden of proof for a petitioner under § 968.20 is preponderance of the evidence, but the circuit court applied the clear and convincing standard and demanded Derzay provide certain kinds of proof to meet that burden. This was error.

Jackson County DHS v. M.M.B., 2021AP98 & 2021AP99, District 4, 4/1/21 (one-judge decision; ineligible for publication); case activity

M.M.B. stipulated that there were grounds for terminating her parental rights to her two children, but argued at the disposition phase that termination wasn’t in the best interest of the children. At that hearing, the County presented the testimony of a psychologist who had assessed M.M.B.’s “psychosocial functioning, including issues related to parenting and substance abuse.” M.M.B. objected, arguing the psychologist’s evaluation was not contemporaneous to the dispositional hearing, but had been conducted two years earlier, and thus wasn’t relevant to the issue of the children’s best interests. (¶¶3-6). The circuit court didn’t err in admitting this testimony.

Fond du Lac County v. J.L.H., 2020AP2049, 3/24/21, District 2 (one-judge decision; ineligible for publication); case activity

Wisconsin Stat. § 51.20(1)(a)e. lays out the “fifth standard” for dangerousness; a person can be committed under it if his or her mental illness prevents him or her from understanding the advantages and disadvantages of treatment, and a lack of treatment will cause a substantial probability that the person will be harmed and become unable to function. But there’s a limitation on this standard that the other standards lack: a person can’t be dangerous under it if care is available, either in the community at large or through ch. 55, that diminishes the threat of harm so that it is not substantial.

State v. A.M.-C., 2021AP94 & 2021AP95, 3/30/21, District 1 (one-judge decision; ineligible for publication); case activity

The state petitioned to terminate A.M.-C.’s rights to two of her children on failure-to-assume and continuing-CHIPS grounds. After being told (apparently via interpreter, as Spanish is her first language) that she had to attend all hearings, A.M.-C. moved to New York City. The circuit court rejected her request to attend by telephone, found her in default, and after prove-up, found her unfit. It later found termination of her rights to be in the children’s best interest.

State v. Chardez Harrison, 2019AP2151, 3/23/21, District 1 (not recommended for publication); case activity (including briefs)

Harrison was arrested on suspicion of some armed robberies and carjackings. While he was in custody, a detective read him the Miranda warnings. The version of the warnings printed on cards for the Milwaukee police to use apparently concludes with a question: “Realizing that you have these rights, are you now willing to answer some questions or make a statement?” (¶6). Harrison responded to this question by saying “I don’t want to make no statement right now.” Pretty clear invocation, right? Wrong, says the court of appeals.

State v. Wilson P. Anderson, 2020AP819-Cr, 3/16/21, District 1 (1-judge opinion; ineligible for publication); case activity (including briefs)

A few weeks ago, District 4 issued a to-be-published decision regarding the State’s burden of proof on a motion for involuntary medication to restore a defendant’s competence for trial. See State v. Green. It held that to satisfy Sell v. U.S., 539 U.S. 166 (2003), the State must file an individualized treatment plan specifying the medications and dosages it wants to administer to the defendant, and the circuit court must approve it. In Anderson’s case, District 1 holds that the State can file a psychologist’s report that simply indicates the defendant’s diagnosis, treatment history, and a need for medication (without specifying drugs, dosages, etc.). District 1’s decision in Anderson seems oblivious to, and contradicts, Green and a new District 4 decision in State v. Engen as well as Sell itself and substantial federal case law.

State v. Eric Engen, 2020AP160-CR, 3/18/21, District 4, (not recommended for publication); case activity (including briefs)

This is the third court of appeals decision on Sell v. United States in three weeks. As in State v. Green, District 4 here again holds that the State must file an individualized treatment plan to support a motion for involuntary medication to restore a defendant’s competence for trial. A psychiatrist’s report simply opining that medication is necessary to restore competency does not satisfy Sell. Green and Engen conflict with District 1’s decision this week in State v. Anderson, which holds that a report by a psychologist (who cannot prescribe medication) simply opining that the defendant needs medication to regain competence, satisfies Sell. The Engen decision is important for several other reasons as well.

State v. Robert Daris Spencer, 2018AP942-CR, District 1, 3/9/21 (not recommended for publication), petition and cross petition for review both granted 8/13/21, affirmed in part, reversed in part, 2022 WI 56; case activity (including briefs)

Spencer challenges the trial court’s decision to dismiss a juror for cause just before deliberations began, but over a dissent the court of appeals holds his claims are forfeited or that any error was harmless. However, Spencer is entitled to a Machner hearing on his claim that trial counsel was ineffective for failing to object to hearsay evidence.

State v. Theophilous Ruffin, 2019AP1046-CR, District 1, 3/9/21 (not recommended for publication), state’s petition for review granted 9/17/21; reversed, 2022 WI 34; case activity (including briefs)

Ruffin raises three challenges to how the jury was instructed at his trial. Two are rejected in all respects, but one—regarding trial counsel’s decision to withdraw a self defense instruction—gets him a Machner hearing.