On Point: Important Posts

State v. Tydis Trinard Odom, 2015AP2525-CR, certification granted 9/12/17; case activity (including briefs). This is the second certification of this case; here’s the first.

Issue

In determining whether the imposition of multiple DNA surcharges constitutes “potential punishment” under WIS. STAT. § 971.08(1)(a) so that a court must advise a defendant about the surcharges before a valid plea may be taken, is the “intent-effects” test, as applied in State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758, and State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786, to ex post facto claims, the same analysis that was applied in State v. Bollig, 2000 WI 6, ¶16, 232 Wis. 2d 561, 605 N.W.2d 199, to a plea withdrawal claim?

If the analysis is the same, should Radaj be overruled in light of the supreme court’s recent decision in Scruggs?

We note that we previously certified the issue of whether multiple DNA surcharges constituted “potential punishment” under WIS. STAT. § 971.08(1)(a), such that a court’s failure to advise a defendant about them before taking his or her plea establishes a prima facie showing that the defendant’s plea was unknowing, involuntary, and unintelligent. The supreme court declined to accept certification.

We certify again because, as explained below, the supreme court’s recent decision in Scruggs now suggests that the ex post facto analysis of Radaj, holding that multiple DNA surcharges are “punishment,” was incorrect.

Review of a summary order of the court of appeals; affirmed 5/4/18; case activity (including briefs)

Issues (from the petition for review):

Anthony Jones was committed under Wis. Stat. ch. 980 after a trial at which the state presented expert testimony relying in part on two actuarial instruments: the MnSOST-R and the RRASOR. Mr. Jones had moved pretrial to exclude these instruments as unreliable under Wisconsin’s new Daubert standard, because they are decades old and were constructed using questionable means. The circuit court permitted their introduction on the ground that they are still in use and that the state’s expert had testified that they are reliable. Did the court adequately scrutinize the instruments for reliability, as is its responsibility under Daubert?

State v. Michel L. Wortman, 2017 WI App 61; case activity (including briefs)

A glitch in the OWI penalty statute appears to suggest that OWI 7th and greater offenses don’t allow for a fine, but only for the imposition of the forfeiture provided for first-offense OWI. The court of appeals concludes otherwise. The court also rejects Wortman’s claim that he was under arrest when a sheriff’s deputy transported him back to the scene of the accident he was in.

Dodge County v. L.A.S., 2017AP302, District 4, 8/17/17 (one-judge decision; ineligible for publication); case activity

Under § 51.20(9)(a) the circuit court must appoint two licensed physicians or psychologists to examine and write reports on an individual subject to involuntary commitment proceedings. This requirement applies only to the initial commitment proceeding, not to the proceeding to extend a commitment.

Winnebago County v. C.S., 2016AP1955, 8/16/17, District 2 (1-judge opinion; ineligible for publication); case activity

C.S. argues that §51.61(1)(g) is unconstitutional because it allows the government to administer involuntary medication to a prisoner without a finding of dangerousness. The court of appeals elected not to decide the issue due to mootness, but that seems like a mistake.

State v. Kavin K. Nesbit, 2017 WI App 58; case activity (including briefs)

Nesbit ran out of gas on I 94. He and his buddy were walking on the shoulder, red can in hand, to get gas when Deputy Fowles pulled up and told them he’d give them a ride to and from the gas station. But first, he asked them if they had any weapons. The friend said “no.” Nesbit who had been behaving normally “‘all of a sudden’ became ‘very deflated’ and shook his head slightly in the negative.”

State v. Derek Asunto, 2015AP50, 8/8/17, District 2 (recommended for publication); case activity (including briefs)

Derek Asunto and the state agreed to resolve several charges by dismissing some and having him plead to others. At the hearing where the deal was announced to the court, he entered a plea to one criminal count. The parties and court agreed the other counts would be held open until the sentencing hearing, but that at that hearing, Asunto would plead to an OWI-4th and the rest would be dismissed.

State v. Anthony Alvarado, 2017 WI App 53; case activity (including briefs)

In this recommended-for-publication opinion, the court of appeals tackles an issue of first impression in Wisconsin.

State v. Samuel Silverstein, 2017 WI App 64; case activity (including briefs)

Pursuant to a warrant, police searched Silverstein’s computer for child porn. The “informer” was Tumblr, which is required by federal law to report suspected child pornography to the National Center for Missing and Exploited Children. Silverstein challenged the warrant as well as the mandatory minimum sentence the trial court imposed per §939.617, which he contends is unconstitutionally vague.

SCOTUS has announced that its new filing system will go live on November 13th. The Court will make all filings–including cert petitions filed in forma pauperis (like ours)–available on line for free.  Click here for more details and the SCOTUS press release.