On Point: Important Posts

On January 27, 2021, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Mercado, 2021 WI 2, 1/20/21, reversing a published court of appeals decision; case activity (including briefs)

Mercado stood trial for sexual assault of three young girls. A video of each girl’s forensic interview was played for the jury pursuant to Wis. Stat. § 908.08. Mercado contends that none of the videos were properly admitted. The supreme court holds that he forfeited most of his challenges, and rejects those it considers.

State v. Ryan Hugh Mulhern, 2019AP1565-CR, petition to review granted 1/20/21; reversed 6/21/22; case activity (including PFR and briefs)

Issue presented (from the state’s PFR)

Does § 972.11(2)(b), the “rape shield” statute, bar relevant evidence of the complainant’s lack of sexual conduct when the state offers the evidence to corroborate the complainant’s allegation of sexual assault and the evidence is not prejudicial to the complainant or the defendant and causes none of the harms the rape shield law is intended to protect against?

State v. Manuel Garcia, 2018AP2319-CR, petition for review granted 1/20/21; case activity

Issue for review: (adapted from the State’s PFR  and the COA’s opinion):

Whether the State may invoke the impeachment exception to the exclusionary rule during its case-in-chief and thereby use a defendant’s statement, taken in violation of Miranda, to rehabilitate one of its witnesses?

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. Octavia W. Dodson, 2018AP1476-CR, petition for review granted 1/20/21; case activity (including briefs)

Issue presented:

Did the sentencing court violate Dodson’s Second Amendment right to keep and bear arms by considering his status as a lawful gun owner an aggravating factor at sentencing?

State v. Nhia Lee, 2021 WI App 12, case activity (including briefs)

This is an important decision for areas of Wisconsin where there is a shortage of defense lawyers. In 2018, when the private bar rate was $40, Lee was charged with felonies in Marathon County and then held for 101 days without counsel while the SPD contacted over 100 attorneys to take his case. Meanwhile, the circuit court repeatedly extended the 10-day deadline for holding a preliminary hearing. He finally got one 113 days after his initial appearance. In a decision recommended for publication, the court of appeals held that the circuit court failed to establish it had good cause to extend the 10-day deadline. It also sets forth factors circuit courts should consider in future cases involving delay in the appointment of counsel for a preliminary hearing.

State v. Todd N. Triebold, 2021 WI App 13; case activity (including briefs)

Triebold was convicted of child sexual assault in Wisconsin and subject to lifetime sex offender registration. He moved to Minnesota and notified the Wisconsin DOC of his address. But he moved again and failed to notify either Wisconsin or Minnesota of his change in address. He was separately convicted of violating the sex offender registration laws of Minnesota and Wisconsin. This appeal concerns his challenges to his Wisconsin conviction. The court’s decision is recommended for publication.

State v. Christopher W. Yakich, 2019AP1832-CR & 2019AP1833-CR, District 4, 1/14/21 (not recommended for publication), petition for review granted, 6/16/21; affirmed, 2022 WI 8; case activity (including briefs)

A defendant who is found not guilty by reasons of mental disease or defect (NGI) of a crime may be committed under § 971.17 for the maximum term of confinement (for felonies under Truth-in-Sentencing II, § 971.17(1)(b)) or two-thirds the maximum term of imprisonment (for misdemeanors or pre-TIS II felonies, § 971.17(1)(a) and (d)). The court of appeals holds that if a defendant is found NGI for more than one offense, the maximum term of commitment is determined by adding together the maximum terms on each offense, as if they were consecutive.

Greer v. United States, No. 19-8709, cert. granted 1/11/21; SCOTUSblog page

Question presented: 

Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial.