On Point blog, page 1 of 1
SCOW to address whether courts must advise defendant of multiple DNA surcharges prior to plea
State v. Tydis Trinard Odom, 2015AP2525-CR, certification granted 9/12/17; case activity (including briefs). This is the second certification of this case; here’s the first.
Issue
In determining whether the imposition of multiple DNA surcharges constitutes “potential punishment” under WIS. STAT. § 971.08(1)(a) so that a court must advise a defendant about the surcharges before a valid plea may be taken, is the “intent-effects” test, as applied in State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758, and State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786, to ex post facto claims, the same analysis that was applied in State v. Bollig, 2000 WI 6, ¶16, 232 Wis. 2d 561, 605 N.W.2d 199, to a plea withdrawal claim?
If the analysis is the same, should Radaj be overruled in light of the supreme court’s recent decision in Scruggs?
We note that we previously certified the issue of whether multiple DNA surcharges constituted “potential punishment” under WIS. STAT. § 971.08(1)(a), such that a court’s failure to advise a defendant about them before taking his or her plea establishes a prima facie showing that the defendant’s plea was unknowing, involuntary, and unintelligent. The supreme court declined to accept certification.
We certify again because, as explained below, the supreme court’s recent decision in Scruggs now suggests that the ex post facto analysis of Radaj, holding that multiple DNA surcharges are “punishment,” was incorrect.
Court of appeals frowns strongly at state, declares error harmless
State v. Kyle Lee Monahan, 2014AP2187, 4/27/17, District 4 (not recommended for publication) review granted 11/13/17; Affirmed 6/29/18; case activity (including briefs)
Kyle Monahan was convicted of OWI homicide after a jury trial. The trial court excluded evidence offered to show that Monahan was not, in fact, driving the vehicle when it crashed. On appeal, the state agrees with Monahan that the evidence should have come in, but argues that its exclusion was harmless. The court of appeals agrees with the state.
Due process doesn’t forbid DNA surcharge where no sample taken
State v. Travis J. Manteuffel, 2016AP96-CR, 12/6/16, District 3 (1-judge decision; ineligible for publication); case activity (including briefs)
State v. Elward, 2015 WI App 51, 363 Wis. 2d 628, 866 N.W.2d 756, held it an ex post facto violation to require misdemeanants to pay the $200 DNA surcharge where the law imposing it went into effect after they had committed their crimes.
Same-day reversal shatters world record for shortest standing precedent!
That’s what we suspect anyway. In 2011, Kansas passed the Offender Registration Act, which requires persons convicted of certain felonies to register with state authorities. That prompted the question of whether applying the Act to persons convicted before it went into effect would violate the constitutional prohibition against ex post facto laws. Last week, the Kansas Supreme Court issued a 4-3 opinion answering “yes.” A few hours later it issued another 4-3 opinion reversing itself on the very same issue.
Court of appeals lowers evidentiary threshold for proving “mental deficiency” under Sec. 940.225(2)(c)
State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.
The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.
Constitutional Defenses – Due Process and Strict Liability: Fraud-Induced Mistake-of-Age Defense to Sexual Assault of Minor
State v. Todd M. Jadowski, 2004 WI 68, on certification
For Jadowski: Richard Hahn
Issue: Whether due process supports an affirmative defense to sexual assault of a minor, § 948.02(2), based on the minor’s intentional misrepresentation of his or her age.
Holding:
¶36. Upon reading Wis. Stat. § 948.02(2), we conclude that the statute is clear and precise. The prohibited conduct is engaging in sexual intercourse with a child under the age of 16 years.
Constitutional Defenses – Ex Post Facto – Change in Statute of Limitations
State v. Jeffrey B. Haines, 2003 WI 39, 2002 WI App 139
For Haines: Mark A. Huesmann, Sonja Davig Huesmann
Issue/Holding: An extension of the limitation period for prosecuting a crime, before the prior limitation period has expired, doesn’t violate the ex post facto clause of the Wisconsin Constitution.
¶15. In sum, the court of appeals succinctly and correctly reasoned that:
[T]he 1994 amendment to Wis.
Ex Post Facto – Continuing Offense
State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01
For Ramirez: Elizabeth A. Cavendish-Sosinski
Issue: Whether § 943.201(2) creates a continuing offense such that, as applied to Ramirez, it violated the ex post facto clause because the statute was promulgated after he commenced the activity that formed the basis for the charge.
Holding:
¶18. We hold that Ramirez obtained money in the form of wages,
Ex Post Facto – Noncriminal Disability flowing from prior conviction
Monroe Swan v. Douglas LaFolette, 231 Wis.2d 633, 605 N.W.2d 640 (Ct. App. 1999)
Issue: Whether denial of opportunity to become notary public due to felony conviction violates ex post facto provision.
Holding: Ex post facto clause forbids punishing as crime any act which wasn’t punishable when committed, but laws that merely disadvantage someone don’t; because the plain language of the new notary public provision evinces no intent to punish,