On Point blog, page 58 of 81
SCOW: Judge’s failure to give mandated immigration warning was harmless
State v. Jose Alberto Reyes Fuerte, 2017 WI 104, reversing a published court of appeals decision, 12/19/17; case activity (including briefs)
A judge taking a guilty or no contest plea is required by § 971.08(1)(c) to warn the defendant that if he or she is not a U.S. citizen the plea might result in deportation, inadmissibility, or denial of naturalization. If the judge doesn’t comply with § 971.08(1)(c) and the defendant shows the plea is likely to result in one of those immigration consequences, the defendant can move to withdraw the plea under § 971.08(2). State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, held that harmless error principles don’t apply to § 971.08(2), so the defendant is entitled to withdraw the plea even if the state claims the defendant actually knew the immigration consequences. This decision overrules Douangmala and holds that the judge’s failure to comply with § 971.08(1)(c) in Reyes Fuerte’s case was harmless.
SCOW suspends defense lawyer for lying and forging a court order
OLR v. Michael D. Petersen, 2016AP563-D, 12/15/17 (case activity )
I am a crook. I am a cheat. I am a thief. I am a liar. I was convicted of a crime on November 9th, 2015. My conviction resulted from my intentional choice to sell my own clients down the river and then trying to cover it up. You may not hire me or have me legally represent you in any fashion until you read the Criminal Complaint and Judgment of Conviction in my Outagamie County Wisconsin Case No. 15CM878. This disclosure is required as one of the conditions of my probation. Op. ¶34
Do we have your attention?
SCOW to address challenge to muddled jury instructions on self defense, accident
State v. Joseph T. Langlois, 2016AP1409-CR, petition for review of a published court of appeals decision granted 12/13/17; case activity (including briefs)
Issues (composed by On Point):
1. Was trial counsel ineffective for failing to object to the jury instructions for self defense and accident on the lesser included charge of homicide by negligent handling of a dangerous weapon?
2. Alternatively, is a new trial in the interest of justice warranted because the erroneous jury instructions on self defense and accident prevented the real controversy from being tried?
3. Did the erroneous instructions on self defense and accident violate due process by relieving the state of the burden to prove every element of the offense?
4. Was the evidence sufficient to support the jury’s verdict of guilty of homicide by negligent handling of a dangerous weapon?
Defense win: Defendant entitled to a day of credit for portion of a day spent in custody
State v. Antonio Johnson, 2018 WI App 2; case activity (including briefs)
Under § 973.155(1)(a) a convicted offender is entitled to credit for “all days spent in custody” in connection with the course of conduct for which sentence is imposed. So what’s a “day” for credit purposes? Any part of a calendar day, as Johnson claims? Or a continuous twenty-four-hour period, as the state asserts? Based on supreme court cases dealing with credit, the court of appeals agrees with Johnson that it is any part of a calendar day.
Defense wins in calculation of the 10-year period under § 346.65(2)(am)2.
State v. Bobby Lopez, 2017AP923-CR, District 2, 2/13/17 (one-judge decision; ineligible for publication); case activity (including briefs)
In order to be “within” the 10-year period under § 346.65(2)(am)2., the subsequent offense must occur before the tenth anniversary of the prior offense. Thus, Lopez’s July 9, 2016, OWI offense is not “within [the] 10-year period” that began on July 9, 2006, the date of his prior offense, and he can’t be charged with second-offense OWI.
Traffic stop to investigate erratic driving wasn’t improperly extended
State v. Travis J. Rose, 2018 WI App 5; case activity (including briefs)
A police officer investigating reports of Rose’s erratic driving concluded Rose was not intoxicated by alcohol, but continued to detain him and, after securing consent, searched Rose’s car, where he found narcotics. The court of appeals holds the officer’s continued detention of Rose, and thus the consent to search the car, were lawful because the officer had reasonable suspicion to continue his investigation.
SCOW ducks First Amendment question
State v. Ginger Breitzman, 2017 WI 100, 12/1/17, affirming an unpublished court of appeals decision; case activity (including briefs)
Breitzman was convicted at trial of several counts of child abuse (for physical assaults) and neglect of her son, J.K. She was also convicted of a charge of disorderly conduct for an incident inside their home in which she called him a “fuck face,” a “retard,” and a “piece of shit.” The lead issue is whether her trial lawyer was ineffective for not trying to get the DC dismissed because her words were protected by the First Amendment. The court refuses to decide.
November 2017 publication list
On November 29, 2017, the court of appeals ordered the publication of the following criminal law related decisions:
State v. A.L., 2017 WI App 72 (court may order reexamination of juvenile fount not likely to be competent to proceed)
State v. Damien Markeith Divone Scott, 2017 WI App 74 (checkpoint stop justified by “special needs” of law enforcement)
SCOW will decide if excluding OWI homicide defendant’s evidence he wasn’t the driver was harmless
State v. Kyle Lee Monahan, 2014AP2187, petition for review of an unpublished COA decision granted 11/13/17; case activity (including briefs)
The parties and the state agree that the circuit court erred in excluding Kyle Monahan’s proffered GPS evidence from his trial; the only dispute in this appeal is whether that error is harmless beyond a reasonable doubt.
Court may order reexamination of juvenile found not likely to become competent to proceed
State v. A.L., 2017 WI App 72, petition for review granted 6/11/18, affirmed, 2019 WI 20; case activity; review granted 6/11/18
The court of appeals holds that § 938.30(5) permits a juvenile court to order the re-evaluation of competency of a juvenile previously found not competent to proceed even though the juvenile was also found not likely to regain competence within the relevant statutory time frame (12 months, or the maximum criminal sentence for the offense, whichever is less).