On Point: Important Posts

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).

On May 31, 2023, the court of appeals ordered publication of the following criminal law related decisions:

State v. Corey T. Rector, 2023 WI 41, 5/23/23 affirming a case certified by the court of appeals, 2020AP1213; case activity (including briefs)

Rector pleaded to five counts of possessing child pornography in a single case. He’d never been convicted of anything before. The sentencing judge ordered that he be placed on the sex offender registry until 15 years after the end of his sentence or supervision. The Department of Corrections then wrote the judge to say that, in its view, any two or more convictions of registry-eligible sex offenses trigger mandatory registration for life. The judge stuck to his guns and reiterated the 15-year registry requirement. The state appealed, and the court of appeals certified the case. The state supreme court now holds, 4-3, that Rector is not required to register as a sex offender for the rest of his life.

Wisconsin Justice Initiative, Inc. v. Wisconsin Elections Commission, 2023 WI 38, 5/16/23, on certification from the court of appeals; case activity (including briefs)

In a 6-1 opinion, SCOW held that the ballot question for Marsy’s law complied with Wis. Const. art. XII §1. That’s the old news. The new and BIG news is Justice Dallet’s concurrence. It is essential reading for lawyers arguing constitutional or statutory construction issues to SCOW. She, Karofsky, and A.W. Bradley say that they are not bound by “methodologies” for interpreting constitutions and statutes–specifically “originalism” or strict adherence to the “plain language”–that SCOW has used in some past cases. If Justice-elect Protasiewicz agrees, we may soon see some defense-friendly constructions of our constitution and statutes.

State v. Tracy Laver Hailes, 2021AP1339-CR, 5/9/23, District 1, (recommended for publication); case activity (including briefs)

In a decision recommended for publication, the court of appeals holds that under §973.01(2)(c) a circuit court may apply either §939.62(1) (governing habitual criminality) or §961.48 (governing second or subsequent offenses) to enhance a penalty, but it may not apply both. While the circuit court erroneously applied both enhancers in this case, the court of appeals nevertheless denied Hailes’s claims for plea withdrawal, sentence modification, and resentencing.

Nelson Garcia, Jr., v. Randall Hepp, No. 21-3268, 4/25/23, affirming Nelson Garcia, Jr. v. Brian Foster

A long line of Supreme Court cases holds that a criminal defendant’s right to counsel attaches when he or she becomes a criminal defendant: when he or she is formally accused of a crime. Most recently, in Rothgery v. Gillespie County, 554 U.S. 191 (2008), the Court applied this rule to conclude that the defendant had the right to counsel when a police officer brought him before a judge and the judge found probable cause, committed him to jail, and set bail. In Milwaukee County, though, when a person is arrested without a warrant, judges routinely find probable cause, order detention, and set bail without seeing the person. As happened in Garcia’s case, an officer presents a judge a form–the CR-215–detailing the basis for suspecting the person; the judge can then check a box indicating that probable cause exists and can also set bond. The form is then distributed to, among others, the person being held.

On April 26, 2023, the court of appeals ordered publication of the following criminal law related decisions:

Outagamie County v. L.X.D.-O., 2023 WI App 17 (counties must move examiners’ reports into evidence at recommitment hearings, but not at initial commitment hearings).

Brown County Department of Human Services v. S.K., 2023 WI App 27; case activity

A court has grounds to terminate parental rights under §48.415(9m) when the parent commits a “serious felony against a child.” Here, the circuit court found that grounds existed to terminate Stephanie’s parental rights to Robert because she had been convicted of  child neglect resulting in death under but “as a party to the crime.” In a decision recommended for publication, the court of appeals reversed, but it rejected Stephanie’s argument that an “as a party to the crime” conviction can never qualify as a “serious felony.”

State of Wisconsin ex rel. Antonio S. Davis v. Circuit Court for Dane County and Honorable Ellen K. Berz, 2022AP1999-W, PFR granted 03/31/2023;  COA decision affirmed, 2024 WI 14, case activity (including briefs, petition for review, and state’s response)

Davis was arrested and charged with two misdemeanors in Dane County. He applied for an attorney through the State Public Defender a day after his arrest, but made his initial appearance before a court commissioner without appointed trial counsel. That same day, Davis’ case was assigned to Judge Ellen K. Berz. Counsel was appointed to represent Davis 65 days later, and after consultation with his newly appointed counsel, Davis filed a request for substitution. Judge Berz denied the request as “untimely.” The supreme court will now review whether the delayed appointment of counsel provides an exception to the strict adherence to Wis. Stat. § 971.20(4)’s deadline to file a request for substitution.

State v. Tomas Jaymitchell Hoyle, 2023 WI 24, 3/31/22, reversing an unpublished court of appeals opinion; case activity (including briefs)

This split decision is important for two reasons. First, it authorizes the State to penalize the defendant for exercising his 5th Amendment right to remain silent at trial. Second, it foreshadows how Justice Hagedorn will likely rule in cases involving a broad range of criminal and civil constitutional rights that were established after the framers wrote the United State Constitution.