On Point: Important Posts

State v. Patricia A. Enriquez, 2015AP1850-CR, District 2, 7/27/16 (not recommended for publication); case activity (including briefs)

After Enriquez made a statement at her sentencing for delivering nonnarcotic controlled substances, the sentencing judge presented the parties with information he had uncovered based on his own internet searches. He claimed the information showed that Enriquez’s misrepresented facts about her nursing license status in Texas and Illinois. Finding that Enriquez’s character for honesty was “miserable” based in part on this ex parte research, the judge sentenced her to consecutive terms of sixty-six months’ imprisonment, far beyond what the state had recommended. But the information the judge dredged up was inaccurate, and because the court relied on that misinformation in sentencing her, Enriquez is entitled to be resentenced.

State v. Ernesto E. Lazo Villamil, 2016 WI App 61, petitions for review and cross-review granted 1/9/2017, affirmed 2017 WI 74, ; case activity (including briefs)

Lazo Villamil was convicted and sentenced for operating after revocation and causing death under § 343.44, one of the provisions of which says that the offense is both a misdemeanor and a felony. He claims that convicting and sentencing him for the felony rather the misdemeanor violated the rule of lenity and his rights to due process and equal protection. The court of appeals disagrees, but grants resentencing due to the circuit court’s failure to consider certain sentencing factors..

State v. Patrick H. Dalton, 2016AP6-CR,7/20/16, Distrct 2 (1-judge opinion; ineligible for publication); case activity (including briefs)

The court of appeals here holds that Dalton is entitled to an evidentiary hearing on his claim that trial counsel was ineffective for failing move to suppress the test results from a warrantless blood draw. The record contains no evidence that exigent circumstances existed a la Missouri v. McNeely, and the officer who ordered the draw gave no indication that he ever considered seeking a warrant.

OLR v. John Kenyatta Riley, 2016 WI 70, 7/15/16; case activity (including briefs)

Leaving us with another splintered decision as the current term comes to its end, a majority of the supreme court votes to publicly reprimand an attorney for “offering” false testimony from his client and then failing to take reasonable measures to correct the testimony. The precedential value of the opinion is uncertain, and perhaps nil, as there’s no majority rationale for the decision and it involves a previous version of the relevant ethical rule; nonetheless, every lawyer who calls witnesses should be aware of it and contemplate what it might portend.

State v. Eric L. Loomis, 2016 WI 68, 6/13/06, on certification from the court of appeals, case activity (including briefs)

The developer of COMPAS says that he didn’t design it to be used in sentencing, and he won’t disclose its “trade secret” algorithm. See Pro Publica interview here. But in a 7-0 decision (with 2 concurrences) SCOW holds that if used properly, observing certain “limitations and cautions,” a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate due process. Slip op. ¶8.

State v. Patrick J. Lynch, 2016 WI 66, 7/13/16, affirming (for all practical purposes) a published court of appeals decision, 2015 WI App 2, 359 Wis. 2d 482, 859 N.W.2d 125; case activity (including briefs)

A very divided supreme court once again declines to overrule State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, and leaves the current standard and remedy intact—or, as the mandate puts it, “the law remains as the court of appeals has articulated it.” But four separate writings totaling 135 pages make it clear Shiffra in its current form will certainly be subject to challenge again.

State ex re. Aman Singh v. Paul Kemper, 2016 WI 67, 7/13/16, affirming in part and reversing in part a published court of appeals decision, 2014 WI App 43, 353 Wis. 2d 520, 846 N.W.2d 820; case activity (including briefs)

This habeas case involves three discrete ex post facto claims regarding multiple offenses committed and disposed of over a short time span during which there were three versions of Truth-in-Sentencing. A fractured court issues five separate opinions, resulting in holdings that find some ex post facto violations but apparently provide no relief to Singh, the petitioner.

City of Eau Claire v. Melissa M. Booth Britton, 2016 WI 65, 7/12/16, reversing a circuit court order on bypass, case activity (including briefs)

OWI specialists, pay attention to this case! It abolishes subject matter jurisdiction challenges to improperly-charged 1st offense OWIs. Everyone else, pay attention too. Justice Abrahamson’s 33-page dissent offers a comprehensive analysis of how the majority opinion (written by R.G. Bradley) fundamentally misunderstands circuit court competency and subject matter jurisdiction and broadly impacts public policy as well as civil and criminal litigation.

State v. Timothy L. Finley, Jr., 2016 WI 63, affirming a published court of appeals decision, 2015 WI App 79, 365 Wis. 2d 275, 872 N.W.2d 344; case activity (including briefs)

Reaffirming the long-standing law governing plea withdrawal that was established in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and limiting the reach of two recent cases that muddied the Bangert procedure, the supreme court holds, 5 to 2, that Finley is entitled to withdraw his plea because the circuit court misadvised Finley of the maximum penalty during the plea colloquy and the state failed to prove Finley knew the actual maximum penalty.

State v. Leopoldo R. Salas Gayton, 2016 WI 58, 7/6/16, affirming an unpublished court of appeals opinion, 2014 WI App 120, 358 Wis. 2d 709, 856 N.W.2d 345; case activity (including briefs)

SCOW took this case to address “whether a sentencing court may rely on a defendant’s illegal immigrant status as a factor in fashioning a sentence.” See here. In a 6-0 decision, the answer, at least on the facts of this case, is that a Wisconsin court may sentence a defendant more harshly because he is an “illegal alien.” The concurrence by Justice A.W. Bradley provides guidance to lower courts and defense attorneys about how to handle immigration status at sentencing.