On Point: Important Posts

Holguin-Hernandez v. United States, USSC No. 18-7739, cert granted 5/30/19

Question presented:

Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.

State v. Emmanuel Earl Trammell, 2019 WI 59, May 31, 2019, affirming an unpublished court of appeals decision; case activity (including briefs)

Trammell challenged Wis. JI—Criminal 140, Wisconsin’s standard instruction on the burden of proof in a criminal case, arguing it dilutes the state’s burden of proving guilt beyond a reasonable doubt. His primary challenge was to the directives that “[w]hile it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt. You are to search for truth.” The court rejects Trammell’s arguments, though two concurring justices ask the Criminal Jury Instruction Committee to consider whether the instruction should be modified because it lacks an explanation of the quantum of proof required.

State ex rel. Ezequiel Lopez Quintero v. Dittmann, 2019 WI 58, reversing and remanding a court of appeals memorandum opinion, case activity (including briefs)

Go Remington Center for the 5-2 win in SCOW! The court of appeals dismissed R.C.’s habeas petition ex parte because it did not allege why Lopez Quintero waited 9 years to file it in violation of State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 565 N.W.2d 805 (Ct. App. 1997).  This overrules Smalley and holds that a habeas petitioner need not allege timeliness in his petition.

On May 29, 2019, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Michael J. Scott, 2019 WI App 22 (the exclusionary rule applies to property forfeiture actions; but so does the good-faith exception)

State v. Mose B. Coffee, 2019 WI App 25 (OWI arrest automatically permits a search of the vehicle and all the containers within it)

State ex rel. Joshua M. Wren v. Reed Richardson, 2017AP880, review of an unpublished court of appeals order granted 5/14/19; case activity

Issue (from the petition for review):

Whether a criminal defendant who was denied a direct appeal and consequently was also deprived of counsel on appeal due to his trial counsel’s failure to file a notice of intent was properly denied habeas corpus relief based on the State’s assertion of a laches defense.

Portage County v. J.W.K., 2019 WI 54, 5/21/2019, affirming an unpublished order dismissing appeal as moot; case activity

Practitioners know that it’s rare to get from final judgment to court of appeals decision on the merits in less than a year. Just the ordinary statutory time frames for appointment of counsel, transcripts, motions or notices, transmitting the record, and briefing schedules can easily eat up well over half that time. So, an extension of a ch. 51 commitment–which is statutorily limited to one year in length–will often, if not invariably, be over by the time a decision can be reached. The supreme court now decides that, in some cases at least, this makes appeals of those extensions moot.

In re Judicial Disciplinary Proceedings Against Piontek, 2019 WI 51, 5/21/19; case activity

The supreme court suspends Judge Michael Piontek from office for five days for “obviously unethical” and “clearly improper” misconduct in two criminal cases.

State v. Carrie E. Counihan, 2017AP2265-CR, petition for review granted 5/14/19, and State v. Donavinn Coffee, 2017AP2292-CR, petition for review granted 5/14/19; case activity (Counihan; Coffee)

Issues:

Does a defendant forfeit his right to challenge a judge’s consideration of information at sentencing by failing to object to the information at the time of sentencing?

If trial counsel does not object to the court’s consideration of the information and the defendant alleges postconviction that trial counsel was ineffective for failing to object, what is the standard for determining whether trial counsel’s failure was prejudicial?

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.

In our ongoing effort to improve On Point, we have begun to edit the index of posts on our Archive page so that it is more user-friendly and easier for readers to find the elusive “Defense wins!” on specific issues. Chapter 51 is our guinea pig.