On Point: 31. Probation/ES

State v. Peter J. King, 2020 WI App 66;  case activity (including briefs)

Packingham v. North Carolina, 137 S Ct. 1730 (2017) struck down a law making it a felony for a registered sex offender to use any social networking site that permits minors to become members or to create personal web page. The statute was so broad that it violated the 1st Amendment. See our post here. In this case, the court of appeals holds that Packingham’s reasoning does not apply to court-ordered conditions of extended supervision that sharply restrict a defendant’s access to the internet. 

State v. Jordan Alexander Lickes, 2020 WI App 59; case activity (including briefs); review granted 11/18/2020, affirmed, 2021 WI 60

This is not much of a surprise after State v. Ozuna, but the court of appeals here reverses a grant of expunction, holding in a to-be-published decision that any noncompliance with conditions of probation–even those that are not ordered by the court, but are imposed by DOC rule–makes expunction unavailable.

State v. William Francis Kuehn, 2018AP2355, 7/28/20, District 1 (not recommended for publication); case activity (including briefs)

Kuehn pleaded to 5 counts of possession of child pornography; 10 more were dismissed and read-in. The court of appeals rejects Kuehn’s three challenges to his conviction and sentence. It holds trial counsel wasn’t deficient in deciding a third-party-perpetrator (Denny) defense wasn’t viable at trial. It says the circuit court properly assessed the $500 per-image surcharge for the 10 images that made up the read-ins. And, it finds not overbroad the circuit court’s imposition of an ES condition that Kuehn have no contact with his girlfriend.

State v. Leonard D. Kachinsky, 2020AP118-CR, 7/29/20, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

In 2018, the circuit court imposed a harassment injunction against Kachinsky (then a municipal judge) based on his conduct toward M.B., the municipal court manager. This appeal concerns his conviction and sentence for violating that order by hanging a sexual harassment poster by M.B.’s desk and highlighting the term “sexual” each time it appeared.

Lomax v. Ortiz-Marquez, USSC No. 18-8369, 2020 WL 3038282, 6/8/20, affirming 754 Fed. Appx. 756 (10th Cir. 2018); Scotusblog page (including links to briefs and commentary)

The federal Prison Litigation Reform Act (PLRA) bars a prisoner from being able to file a lawsuit without first paying filing fees if the prisoner has “three strikes”—that is, has had three or more prior suits dismissed because they were frivolous, malicious, or failed to state a claim. 28 U.S.C. § 1915(g). The issue here is whether the dismissal had to be with prejudice, or whether a dismissal without prejudice counts, too. It does, says a unanimous Court.

State v. Brandin L. McConochie, 2019AP2149-CR, District 2, 4/22/20 (1-judge opinion, ineligible for publication); case activity (including briefs)

McConochie pulled his vehicle alongside Amish buggies and exposed his genitals to the occupants within. He pled no contest to 3 counts of lewd and lascivious behavior as a repeater. As a condition of probation, the court banished him a delineated area where Amish live. McConochie argued that banishment violated his constitutional right to travel.

State v. Larry C. Lokken, 2017AP2087-CR, 9/17/19, District 3 (unpublished), case activity (including briefs)

Lokken, a long-time Eau Claire County Treasurer, pled “no contest” to 3 counts of misconduct in office and 5 counts of theft in a business setting for stealing $625,758.22 from taxpayers.  The circuit court ordered $681,846.92 in restitution  and imposed an unusual condition of probation on one of the counts: if Lokken failed to pay restitution in 4 1/2 years, the 10-year probation period  on Count 2 would be revoked.

State v. Dennis L. Schwind, 2019 WI 48, affirming a court of appeals’ summary disposition in 2017AP141-CR, 5/3/19; case activity (including briefs).

Section 973.09(3)(d) gives circuit courts authority to reduce or terminate a term of probation if 6 requirements are met. Schwind did not proceed under that statute because he couldn’t satisfy the requirements. So he argued that circuit courts also have inherent authority to reduce or terminate a term of probation for cause.  State v. Dowdy, 2012 WI 12, left this question open. This 5-2 opinion shuts it: No, circuit courts don’t have that authority.

Robert W. Huber v. Gloria Anderson, et al., 7th Circuit Court of Appeals No. 17-1302 (Nov. 26, 2018)

Though not directly related to the day-to-day practice of criminal law, this decision may be of interest, if only for its holding regarding the time limits for a person to sue DOC based on claims it improperly kept the person in prison or on supervision.

State v. Dennis L. Schwind, 2017AP141-CR, petition for review of a summary disposition granted 9/4/18; case activity

Issues (from Schwind’s petition for review):

1. Did the circuit court have inherent authority to reduce the length of Schwind’s probation?

2. If circuit courts have inherent authority to reduce the length of probation, what standard applies to the exercise of their authority?