On Point: Important Posts

State v. Anthony R. Pico, 2018 WI 66, 6/15/18, affirming a split, unpublished court of appeals opinion, 2015AP1799-Cr, case activity (including briefs)

This split decision clarifies important aspects of ineffective assistance of counsel law, sentencing law, and appellate procedure. In addition, Justice Abrahamson’s dissent includes a word of caution for lawyers representing clients who have experienced brain trauma that may affect their mental capacity.

State v. Justin A. Braunschweig, 2017AP1261-CR, petition for review of an unpublished court of appeals decision granted 6/11/18; case activity (including briefs)

Braunschweig was convicted of first-offense OWI causing injury, but that conviction was expunged. So, when he picked up another OWI, was it a first or a second?

State v. Michael L. Cox, 2018 WI 67, 6/15/18, on certification from the court of appeals; case activity (including briefs)

For years the DNA surcharge statute said that a court “shall” impose a surcharge on certain felony sex offenses and “may” impose a surcharge on any other felony offense. See § 973.046 (1g) and (1r) (2011-12). That changed in 2013 Wis. Act 20, §§ 2353 and 2354, which amended the statute to say a court “shall” impose a surcharge for all criminal convictions, including misdemeanors, committed on or after January 1, 2014. A unanimous supreme court holds that in making this change the legislature intended to eliminate a circuit court’s discretion to waive the surcharge by requiring the surcharge to be imposed in every case.

State v. Jessica M. Randall, 2017AP1518-Cr, District 4, 6/14/18 (1-judge opinion, ineligible for publication), review granted 10/9/18, reversed, 2019 WI 80; case activity (including briefs)

Here’s a rare sighting! One district of the court of appeals has declared that it is not bound by a decision addressing the same set of facts issued by another district. This is what you call SCOW bait (sorry to say, given that this is a defense win). Randall was arrested for OWI, an officer read the “Informing the Accused” card, and she agreed to a blood test. A few days later, her lawyer sent the lab a letter withdrawing her consent. The court of appeals held that Randall had a right to withdraw her consent up to the time when blood was actually tested. But just 6 months ago, the court of appeals reached the opposite result in State v. Sumnicht. 

State v. A.L., 2016AP880, review of a published court of appeals decision granted 6/11/18; case activity

Where a juvenile has been found incompetent to stand trial, Wis. Stat. § 938.30(5)(e)1. says he or she can be later reevaluated–but only if he or she was found likely to regain competence. Nevertheless, the court of appeals, relying on a tendentious reading of the legislative history, decided even a juvenile who has been found unlikely to become competent can also be reevaluated.

State v. Gitan Mbugua, 2017AP967, District 1, 6/12/18 (not recommended for publication); case activity (including briefs)

This appeal concerns ineffective assistance of counsel in connection with 2 plea offers. Mbugua claimed that his 1st lawyer provided him incorrect information about option 2 of “plea offer 1” and this caused him to reject “plea offer 1” altogether. He also claims that during a second round of plea bargaining, option 2 of “plea offer 1” remained on the table, and his second lawyer incorrectly advised him to reject it in favor of an entirely new plea offer (we’ll call it “plea offer 2”), which proved to be bad deal. The court of appeals denied both claims for lack of prejudice based upon Lafler v. Cooper, 566 U.S. 156 (2012). A quick Westlaw search suggests that this is the first Wisconsin case to apply Lafler (and it’s unpublished).

State ex rel. Ezequiel Lopez-Quintero v. Michael A. Dittman, 2018AP203-W, petition for review of a memorandum opinion granted 6/11/18; case activity

Issue (from the petition for review)

Can the court of appeals apply an irrebuttable presumption of prejudice and deny ex parte a sufficiently pled petition for writ of habeas corpus solely for untimeliness, under Wis. Stat. § 809.51?

Portage County v. J.W.K., 2017AP1574, petition for review of a memorandum opinion granted, 6/11/18; affirmed, 5/21/19; case activity

Whether an appeal of the extension of a Chapter 51 commitment based on insufficient evidence becomes moot when the circuit court enters a new extension order?

Whether an examining physician’s testimony is sufficient to support the extension of a commitment where the physician merely recites the statutory language?

State v. John Patrick Wright, 2017AP2006-CR, 6/12/18, District 1;(1-judge opinion, ineligible for publication), petition for review granted 10/9/18, reversed 2019 WI 45, ; case activity (including briefs)

Police stopped Wright’s car because a headlight was out, but they asked him whether he had a concealed carry permit and weapons in the car. He admitted he had a firearm and explained that he had recently completed the CCW course. Too bad. He was arrested and charged with 1 count of carrying a concealed weapon. He moved to suppress on the grounds that the police lacked reasonable suspicion to question him about a CCW permit and weapons.

On May 31, 2018, the court of appeals ordered the publication of the following criminal law related decision:

State v. Robert P. Vesper, 2018 WI App 31 (sentencing judge didn’t need to give separate reasons for imposing a fine)