On Point blog, page 24 of 214
DOC may collect restitution from inmate even after a sentence has expired
State ex rel. Drazen Markovic v. Jon E. Litscher, 2018 WI App 44; case activity (including briefs)
The Department of Corrections has the authority to take certain funds from an inmate’s account to pay the restitution ordered in a case even though the inmate has finished serving the sentence in that case.
Identity theft statute applied to defendant’s forgery of documents he submitted at sentencing hearing
State v. Theoris Raphel Stewart, 2018 WI App 41; case activity (including briefs)
Facing sentencing for failure to pay child support, Stewart forged some documents to support his argument for probation rather than a prison sentence. For his trouble he was charged with and convicted of identity theft under § 943.203(2). The court of appeals rejects his argument that his use of the forged documents did not violate that statute.
“Boilerplate” motion to suppress did not contain sufficient allegations to merit an evidentiary hearing
State v. Dylan D. Radder, 2018 WI App 36; case activity (including briefs)
In a decision every trial-level criminal defense lawyer must read, the court of appeals affirms the denial of a motion to suppress without an evidentiary hearing because the motion failed to allege sufficient facts to raise a question of disputed fact that must be resolved at a hearing. Understand the standards set out in this decision, make sure your motions attempt to adhere to them, and be prepared to argue your suppression motions satisfy them, as every prosecutor and trial judge will be eager to invoke this decision to deny your motions without a hearing.
Sentencing judge didn’t need to give separate reasons for imposing fine
State v. Robert P. Vesper, 2018 WI App 31; case activity (including briefs)
Vesper complains that when he was sentenced for his 7th OWI offense the judge didn’t give a separate explanation for why it was imposing a fine in addition to prison time. Over a dissent, the court of appeals concludes the judge said enough to satisfy the (not at all exacting) standard of review for exercise of sentencing discretion. The court also rejects Vesper’s claim that the judge didn’t assess his ability to pay the fine.
Warrantless entry and search authorized by third-party consent
State v. Dorian M. Torres, 2018 WI App 23; case activity (including briefs)
Dorian Torres’s mother Shelly allowed police into the apartment Dorian was living in with his father, Emilio. The police found Emilio’s body during a search of the apartment, leading to Dorian being charged with homicide. The court of appeals holds the police reasonably relied on Shelly having authority to consent to their entry and search of the apartment.
February 2018 publication list
On February 28, 2018, the court of appeals ordered the publication of the following criminal law related decisions:
State v. Marcos Rosas Villegas, 2018 WI App 9 (addressing guilty plea waiver rule and holding lawyers need not advice clients about DACA consequences of plea)
State v. Mario Douglas, 2018 WI App 12 (inaccurate advice about consequences of going to trial invalidated plea)
Defendant pleading NGI doesn’t need to know maximum length of commitment
State v. Corey R. Fugere, 2018 WI App 24, affirmed, 2019 WI 33; case activity (including briefs)
Because civil commitment is neither punishment nor a direct consequence of a guilty or no contest plea, a defendant entering an NGI plea does not have to be advised during the plea colloquy of the maximum term of commitment that could be ordered.
Prisoners challenging DOC’s deduction of prison funds to pay court obligations must exhaust administrative remedies
State v. Marquis T. Williams, 2018 WI App 20; case activity (including briefs)
Williams, a prison inmate, objected to DOC deducting funds from his prison account to pay the restitution ordered in his criminal case. He asked the sentencing judge to order DOC to stop but the sentencing judge declined. The court of appeals affirms, holding the sentencing court isn’t competent to address that issue. Instead, Williams has to exhaust his administrative remedies using the inmate complaint review system (ICRS) and, if that fails, he can bring a certiorari action in circuit court.
January 2018 publication list
On January 31, 2018, the court of appeals ordered the publication of the following criminal law related decisions:
State v. Antonio A. Johnson, 2018 WI App 2 (defendant entitled to a day of credit for portion of a day spent in custody)
State v. Taran Q. Raczka, 2018 WI App 3 (whether defendant was negligent in not taking seizure medication is a jury question)
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.