On Point blog, page 1 of 20
COA: Defendant not prejudiced at trial for OWI by “numbers-only” jury selection process.
State v. Nicholas J. Bergner, 2024AP1875, District I, 6/3/25 (one-judge decision; ineligible for publication); case activity
The COA affirmed the circuit court’s order denying Nicolas Bergner’s postconviction motion for a new trial. Although the circuit court did not follow the procedure required by SCOW in Tucker for using a numbers-only jury selection process, to which trial counsel did not object, Bergner was not prejudiced.
Split decision from COA on challenge to IID condition of probation
State v. Thatcher R. Sehrbrock, 2022AP2153-CR, 8/8/24, District IV (authored); case activity
Sehrbrock, convicted of robbery with use of force as PTAC, appeals the judgment of conviction and order denying his postconviction motion in which he challenged a condition of probation requiring that an ignition interlock device be installed on any motor vehicle that he owns or operates. He argued that the IID condition was unreasonable and its term was harsh and excessive. The COA affirms in a 2-1 decision.
Defense Win! Advancement in PTSD treatment is a “new factor” for sentence modification
State v. Robert M. Schueller, 2023AP1755-CR, 6/20/24, District IV (recommended for publication); case activity
In a decision recommended for publication, the court of appeals holds that advances in PTSD treatment constitute a new factor, where the sentencing court expressly relied on its understanding that Schueller’s PTSD was uncurable in determining his risk to the public and the term of his incarceration.
Defense Win! Circuit court’s failure to “personally ascertain” factual basis for pleas entitles defendant to Bangert hearing
State v. Megan E. Zeien, 2023AP1787-CR, 4/24/24, District II (one-judge decision, ineligible for publication); case activity
If you’ve ever wondered whether you have a Bangert claim concerning a circuit court’s failure to “ascertain personally whether a factual basis exists to support [your client’s] plea,” this unpublished but citable decision is worth a read. Unfortunately, the decision is a bit unclear about how exactly the state may seek to establish that Zeien’s pleas were knowing, intelligent, and voluntary at an evidentiary hearing. See Op., ¶¶19, 22.
COA affirms conviction that results in LWOP sentence
State v. Alvin James Jemison, Jr., 2021AP2207-CR, 7/18/23, District 1 (not recommended for publication); case activity (including briefs)
After a jury trial, Jemison was convicted of second-degree sexual assault of an unconscious person (Teresa) as a repeater – serious sex crime and sentenced to life in prison without the possibility of release to extended supervision. See Wis. Stat. § 939.618(2)(b). After the circuit court denied his postconviction motion without a Machner hearing, Jemison raised three claims on appeal: (1) the evidence was insufficient to support the completed sexual intercourse charge, (2) the court erred in its admission of other acts evidence, and (3) the court erroneously denied his claims without an evidentiary hearing. The court of appeals rejects each of Jemison’s claims and affirms.
Defense Win! SCOW applies Floyd, reverses COA, reinstates grant of 433 days sentence credit
State v. Michael K. Fermanich, 2023 WI 48, 6/14/23, reversing a per curiam court of appeals decision; case activity (including briefs)
The key takeaway here is that five justices reaffirm and apply State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, 606 N.W.2d 155, and hold that Fermanich is entitled to 433 days sentence credit for time he spent in custody in connection with Oneida County charges that were dismissed and read-in at his Langlade County sentencing. (Opinion, ¶2). A concurrence by Justice Dallet is worth reading as a preemptive response to the dissent’s answer to the question for which the court granted review: whether State v. Tuescher should be reexamined and limited to the unique circumstances present there. A dissent by Chief Justice Ziegler and R.G. Bradley would have overruled Floyd, denied Fermanich credit under Tuescher, and required him to return to custody for an additional 433 days. (See Op., ¶19, Dallet, concurring).
Defense win: Defendant alleged sufficient facts to get a hearing on his motion to reopen a default refusal judgment
State v. Peter John Long, 2022AP496, District 2, 5/3/23 (one-judge decision; ineligible for publication); case activity (including briefs)
The state concedes, and the court of appeals agrees, that Long is entitled to a hearing on his motion to reopen the default judgment entered in his refusal proceeding.
Defendant’s s. 974.06 motion is barred because he is no longer in custody under the conviction he’s challenging
State v. Michael J. Viezbicke, 2021AP2172, District 2, 10/12/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Viezbicke filed a postconviction motion under § 974.06 challenging his convictions in a 2017 misdemeanor case. The court of appeals holds the motion was barred because he is no longer in custody under the sentence imposed in that case.
SCOW: trial judge’s in-chambers conversation with ailing juror wasn’t a critical stage of proceedings requiring the presence of defense counsel
State v. Robert Daris Spencer, 2022 WI 56, July 6, 2022, affirming in part and reversing in part an unpublished court of appeals decision; case activity (including briefs)
A majority of the supreme court holds that Spencer had no right to be personally present or even to have counsel present when the trial judge decided to dismiss a juror for cause just before deliberations began because the judge’s interaction with the juror wasn’t a critical stage of the proceedings.
Rule allowing relief from judgment based on “mistake” includes legal mistakes by judges
Last week SCOTUS issued Kemp v. United States construing Federal Rule of Civil Procedure 60(b)(1). That rule allows a party to seek relief based on “mistake, inadvertence, surprise or excusable neglect” within one year of the date on which a judgment becomes final. Wisconsin’s analog is §806.07. The issue in Kemp was whether the term “mistake” means mistakes by parties or whether it includes mistakes by judges.