On Point blog, page 59 of 81
October 2017 publication list
On October 27, 2017, the court of appeals ordered the publication of the following criminal law related decision:
State v. Guy S. Hillary, 2017 WI App 67 (anonymous, barely corroborated tip was sufficient to establish probable cause to search home)
Defense win! County’s effort to convert Chapter 55 protective services order to protective placement order violated due process
Waushara County v. B.G., 2017AP956, 10/26/17, District 4 (1-judge opinion, ineligible for publication); case activity
When the circuit court entered a protective services order for B.G., it did not include any conditions or labels such as “temporary” or “conditional.” It did, however, state that B.G. “does not meet the standards for protective placement.” When B.G. tried to resist services, the County filed a “Notice of Transfer of Protective Placement” asking the circuit court to remove him from his home and place him in a facility. The court did as asked. The court of appeals now reverses.
SCOW will address State’s request that it overrule State v. Hess’s limit on good-faith exception to exclusionary rule
State v. Christopher John Kerr, 2016AP2455-CR, petition for bypass granted 10/17/17; case activity (including briefs)
Issue (based on the parties’ court of appeals briefs)
Does the good-faith exception to the exclusionary rule apply when there is no misconduct by a law enforcement officer in arresting an individual on an active commitment order that is later found to be void ab initio?
SCOW will decide if lifetime GPS monitoring is a penalty that judge must cover during plea colloquy
State v. DeAnthony K. Muldrow, 2017 WI App 47, petition for review granted 10/17/17; case activity (including briefs)
Issue (composed by On Point)
Does lifetime GPS monitoring mandated under § 301.48 constitute “punishment,” thus requiring a judge to advise a defendant that he or she will be subject to the monitoring as a consequence of a guilty or no contest plea?
SCOW to decide whether “mandatory” DNA surcharges can be waived
State v. Michael L. Cox, 2016AP1745-CR, certification granted 10/17/17; case activity (including briefs)
Issue (from certification):
This case raises a single question: whether a sentencing court retains any discretion under Wis. Stat. § 973.046 (2015-16), to waive DNA surcharges for crimes committed after January 1, 2014.
SCOW will review how court of appeals decide prejudice under Strickland in multi-count cases
State v. Lamont Donnell Sholar, 2016AP987, petition for review granted 10/17/17; case activity (including briefs)
Issues (composed by On Point)
1. When assessing the prejudice of defense counsel’s deficient performance in a multiple-count jury trial, may a court divide the prejudice analysis on a count-by-count basis, finding prejudice warranting relief on some counts from the single trial but not others?
2. If a party fails to file a petition for review following an unfavorable Court of Appeals ruling on a particular argument, may the party re-litigate the same question in a second appeal of the same case?
SCOTUS will decide whether agreeing to severance means giving up issue preclusion
Currier v. Virginia, USSC No. 16-1348, certiorari granted 10/16/17
Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.
SCOTUS will address suppression of wiretap evidence
Dahda v. United States, USSC No. 17-43, certiorari granted 10/16/17
Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.
SCOTUS will decide whether Microsoft has to provide emails sought under warrant when the emails are stored overseas
United States v. Microsoft Corp., USSC No. 17-2, certiorari granted 10/16/17
Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.
SCOW will address whether mandatory DNA surcharge violates ex post facto clause
State v. Jamal L. Williams, 2017 WI App 46, cross petitions for review granted 10/10/17; case activity (including briefs)
Issues (composed by On Point)
1. Is the imposition of a single mandatory $250 DNA surcharge an ex post facto violation with respect to a defendant who committed his offense when the surcharge was discretionary and who previously had provided a DNA sample in another case?
2. Is Jamal Williams entitled to resentencing because the circuit court sentenced him based on an improper factor, namely, the fact that Williams refused to stipulate to restitution for which he was not legally responsible?