On Point: 11. Defense Wins

State v. Patrick H. Dalton, 2016AP6-CR,7/20/16, Distrct 2 (1-judge opinion; ineligible for publication); case activity (including briefs)

The court of appeals here holds that Dalton is entitled to an evidentiary hearing on his claim that trial counsel was ineffective for failing move to suppress the test results from a warrantless blood draw. The record contains no evidence that exigent circumstances existed a la Missouri v. McNeely, and the officer who ordered the draw gave no indication that he ever considered seeking a warrant.

State v. Michael R. Hess, 2015AP2423, 7/20/16, District 2 (1-judge opinion; ineligible for publication) case activity

A decade after the circuit court entered a default judgment and revoked Hess’s license due to a drunk-driving event, he filed a motion to vacate per §806.07(1)(h). He claimed that he was not served with the notice of intent to revoke required by §343.05 and due process. On appeal Hess prevails in an opinion reaffirming that there is no deadline for filing a motion to vacate a void judgment.

State v. J.T.M., 2015AP1585, 7/19/16, District 3 (one-judge decision; ineligible for publication); case activity

A detective interrogated 16-year-old J.T.M. while he was in a juvenile residential facility without first giving Miranda warnings. Because J.T.M. was in custody and wasn’t given the warnings, his statement regarding a sexual assault allegation must be suppressed.

State v. Patrick J. Lynch, 2016 WI 66, 7/13/16, affirming (for all practical purposes) a published court of appeals decision, 2015 WI App 2, 359 Wis. 2d 482, 859 N.W.2d 125; case activity (including briefs)

A very divided supreme court once again declines to overrule State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, and leaves the current standard and remedy intact—or, as the mandate puts it, “the law remains as the court of appeals has articulated it.” But four separate writings totaling 135 pages make it clear Shiffra in its current form will certainly be subject to challenge again.

State v. Timothy L. Finley, Jr., 2016 WI 63, affirming a published court of appeals decision, 2015 WI App 79, 365 Wis. 2d 275, 872 N.W.2d 344; case activity (including briefs)

Reaffirming the long-standing law governing plea withdrawal that was established in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and limiting the reach of two recent cases that muddied the Bangert procedure, the supreme court holds, 5 to 2, that Finley is entitled to withdraw his plea because the circuit court misadvised Finley of the maximum penalty during the plea colloquy and the state failed to prove Finley knew the actual maximum penalty.

State v. Charles David Sislo, 2015AP73-CR, 7/6/16, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)

Wow! This “defense win” is gift wrapped for appellate lawyers. Sislo appealed the circuit court’s denial of his motion to suppress the fruits of his arrest, arguing that the police had no probable cause to arrest him even considering the collective knowledge doctrine. The State’s response brief apparently “mischaracterized” Sislo’s argument, and this did not sit well with the court of appeals:

Anastazia Schmid v. Steven McCauley, 7th Circuit Court of Appeals No. 14-2974, 2016 WL 3190670, 6/8/16

Because the record discloses Schmid suffers from some sort of mental disability and may have been hindered by counsel’s failure, the district court acted too hastily in dismissing Schmid’s untimely habeas petition; instead it should have appointed counsel and, if necessary, held an evidentiary hearing to determine whether Schmid’s deadline was subject to equitable tolling.

Eric Blackmon v. Tarry Williams, 7th Circuit Court of Appeals No. 14-3059, 2016 WL 3007212, 5/24/16

Two eyewitnesses to the murder of Tony Cox were shown a photo array and live line-up, and both independently identified Eric Blackmon—a man they did not know—as one of two gunmen who shot and killed Cox. The judge at Blackmon’s bench trial relied heavily on the two eyewitness identifications. (Slip op. at 3-11). While Blackmon’s trial lawyer put on two alibi witnesses, Blackmon alleges he failed to interview and present six additional alibi witnesses. The Seventh Circuit holds this allegation entitles Blackmon to a hearing to take testimony from the missing alibi witnesses and trial counsel.

Rashaad A. Imani v. William Pollard, 7th Circuit Court of Appeals No. 14-3407, 2016 WL 3434673, 6/22/16

Imani tried to exercise his right to self-representation under Faretta v. California, 422 U.S. 806 (1975), but the Wisconsin trial judge prevented him from doing so. In State v. Imani, 2010 WI 66, 326 Wis. 2d 179, 786 N.W.2d 40, the Wisconsin Supreme Court held that the trial judge properly found Imani wasn’t competent to represent himself and that he hadn’t made a knowing and voluntary choice to represent himself. The Seventh Circuit now holds that even under the stringent standard for federal habeas relief, SCOW’s decision was wrong, and Imani is entitled to a new trial.

McDonnell v. United States, USSC No. 15-474, 2016 WL 3461561 (June 27, 2016), reversing United States v. McDonnell, 792 F.3d 478 (4th Cir. 2015); Scotusblog page (includes links to briefs and commentary)

While he was governor of Virginia, Bob McDonnell, along with his wife, accepted gifts and favors worth about $175,000 from a businessman who was trying to get the state medical schools to run studies on a nutritional supplement his company had developed. As discussed in our post on the cert grant, a jury convicted McDonnell of various honest services fraud and extortion counts in relation to various actions he undertook related to the supplement, including arranging and attending meetings with other government officials about the supplement and hosting a private lunch with the businessman at which checks were given to university researchers.