On Point: 29. Postconv. Motions

State v. Theophilous Ruffin, 2022 WI 34, reversing an unpublished court of appeals decision; case activity (including briefs)

This case doesn’t break new ground or develop existing law. Instead, it reverses the court of appeals for not applying the standard a circuit applies when deciding whether to hold an evidentiary hearing on a postconviction motion that alleges ineffective assistance of trial counsel.

State v. Hajji Y. McReynolds, 2022 WI App 25; case activity (including briefs)

This decision addresses: 1) the propriety of successive postconviction motions; 2) a claim that trial counsel was ineffective for failing to object to testimony vouching for the credibility of another witness and to improper character evidence; and 3) the novel issue of the sentencing judge’s use of a written rather than oral explanation of its sentencing rationale under § 973.017(10m)(b).

State v. Joseph L. Slater, 2021 WI App 88; case activity (including briefs)

Slater had a prison sentence imposed and then stayed in favor of probation. While on probation, he was arrested on three new charges. The department of corrections revoked his probation pretty quickly, but he didn’t get sent to prison: instead, he remained in the county jail for over three years while those new charges were pending. After a jury convicted him on on the new charges, he got three new concurrent prison sentences. The court of appeals now holds that Slater should be credited on those new sentences for the years he spent in jail awaiting trial.

State v. M.T.W., 2021AP420-FT, District 2, 8/11/21 (one-judge decision; ineligible for publication); case activity

Information that goes to a witness’s character for truthfulness doesn’t meet the standard under § 48.46(1) for newly discovered evidence that warrants a new trial.

State v. Alijouwon T. Watkins, 2019AP1996-CR, 5/27/21, District 4 (recommended for publication); case activity (including briefs)

The state charged Watkins with several crimes stemming from a domestic violence call: these included escape and battery to one of the police officers who arrested him. While Watkins was in jail, the state charged him with three more crimes related to his alleged attempts to secure perjured testimony about the earlier incident and, the state said, have the arresting officer/alleged victim killed.

State v. War Nakula-Reginald Marion, 2019AP2206-CR & 2019AP2207-CR, District 1, 5/11/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Marion was given maximum consecutive sentences on multiple misdemeanor convictions, all consecutive to the reconfinement ordered after his ES in a prior case was revoked due to the new convictions. Appointed postconviction counsel filed a no-merit appeal under § 809.32 and the court of appeals affirmed the convictions.

State v. Gregory F. Atwater, 2021 WI App 16; case activity (including briefs)

The circuit court denied Atwater’s request to have trial counsel testify at a Machner hearing by telephone rather than in person, as trial counsel had moved out of state and returning to testify would be onerous and logistically difficult. The court then denied Atwater’s postconviction motion because he couldn’t get trial counsel to the hearing and couldn’t prevail without trial counsel’s testimony. The court of appeals holds the circuit court erroneously exercised its discretion by rejecting Atwater’s request for remote testimony by trial counsel.

State v. Cesar Antonio Lira, 2019AO691-CR, petition for review granted 1/20/21; case activity

Issues presented (from the State’s PFR):

1. Under §973.155, a convicted offender is entitled to sentence credit for “all days spent in custody in connection with the course of conduct for which sentence was imposed.” And §973.15(5) provides that an offender lawfully made available to another jurisdiction is entitled to credit for custody time in that jurisdiction “under the terms of s. 973.155.”

The court of appeals awarded Lira over 11 years of credit for custody in Oklahoma under §973.15(5), despite the fact that the Oklahoma sentence was not “in connection with” the Wisconsin offenses for which he was sentenced. It relied on State v. Brown, 2006 WI App 41, 289 Wis. 2d 823, 711 N.W.2d 708, which holds that courts determining credit under section 973.15(5) may not consider “the terms of s. 973.155,” including whether the custody in the other jurisdiction is “in connection with” the Wisconsin offense.

State v. Antonio L. Simmons, 2018AP591-CR, District 1, 7/21/20 (not recommended for publication); case activity (including briefs)

Twenty years ago Simmons was convicted of three counts of recklessly endangering safety for shooting into a car carrying three people, one of whom Simmons had been fighting with in a bar shortly before the shooting. The court of appeals affirms the circuit court’s denial of Simmons’s request under § 974.07 for DNA testing of physical evidence found in the car he was supposedly in at the time of the shooting.

State ex rel. Milton Eugene Warren v. Michael Meisner, 2020 WI 55, 6/11/20, reversing and remanding an unpublished order of the court of appeals, 2019AP567; case activity (including briefs)

Seven years ago, the supreme court decided State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146. That opinion contained a couple of erroneous statements about the procedure for raising claims that postconviction counsel was ineffective. Both parties moved for reconsideration of these statements, which the court inexplicably denied more than a year later. Now with this decision, the court unanimously cleans up the misstatements in Starks, and gives the defendant his day in court.