On Point: 1. Constitutional

State v. Taurus Donnell Renfro, 2019AP193, 9/17/19, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Renfro was a passenger in a car stopped by the police. He was riding from his old residence to his parents’ house–he was moving in with them. When asked, he told the officers that he was carrying a gun in his pocket, and that he didn’t have a concealed-carry permit. A jury convicted him of violating Wis. Stat. § 941.23.

State v. Daniel A. Griffin, 2019 WI App 49; case activity (including briefs)

Someone killed a young child in Griffin’s home. Both Griffin and the child’s mother were present at the time. What evidence was the jury allowed to hear about who committed the crime? If you guessed “any remotely relevant evidence implicating Griffin” (whom the state had charged) and “no evidence implicating the mother” (whom it had not) then you are a scholar of Wisconsin evidentiary law.

State v. Joshua J. Luther, 2016AP1879-CR, 5/3/18, District 4 (not recommended for publication); case activity (including briefs)

This is a pretrial interlocutory appeal. Luther is charged with causing injury by driving with a detectable amount of THC in his blood. He wants to present expert testimony that the levels of THC would not have impaired him at the time of the crash–he says he last smoked pot the night before. He argues this evidence can help him meet the statutory affirmative defense in § 940.25(2)(a), (the “even-if” defense) which requires a defendant to show the crash would have happened even if he was exercising “due care” and had no controlled substances in his blood. The court of appeals holds the evidence inadmissible on the record as it stands, but cautions the trial court that if facts emerge supporting the defense, that could change.

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.

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.

Question presented:

Whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction?

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.

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.  

State v. Alina N. Caminiti, 2015AP122-CR, and State v. Matthew B. Caminiti, 2015AP123-CR, 4/6/2016, District 4 (not recommended for publication); case activity (including briefs).

The Caminitis were members of a church in Black Earth whose leader (Matthew’s father) advocated “rod discipline”–the beating of infants and young children on the bare buttocks with wooden spoons or dowels, often resulting in bruising. The father’s convictions for conspiracy to commit child abuse were affirmed by the court of appeals in 2014; the Caminitis now appeal their convictions at trial for physical abuse of their two children on substantive due process and religious freedom grounds.

State v. D. T., 2015AP1476, 3/1/2016, District 1 (one-judge opinion; ineligible for publication); case activity

D.T. asserts he was ambushed when the juvenile court took judicial notice of his file and sua sponte called a witness before lifting the stay of his five-year sentence; the court of appeals affirms after finding different grounds to lift the stay.