On Point: 45. WI Supreme Court

State v. Alfonzo C. Loayza, 2018AP2066-CR, petition for review of a per curiam opinion granted 6/16/20; case activity

Issue (from the State’s petition for review):

It is well established that a DOT record is competent proof of a defendant’s prior conviction and can therefore be used to enhance the defendant’s sentence. It is also  well established  that a defendant may challenge the existence of a  conviction listed on a DOT record. But currently, there is no accepted procedure for how a defendant should challenge the existence of a conviction listed in a DOT record and what burden he must satisfy to make a DOT record so unreliable that it no longer qualifies as competent proof of the conviction.

Do the lack of a judgment of conviction for a prior offense and other documents that “support the inference” that the conviction does not exist render a Wisconsin DOT driving record that lists the conviction so unreliable that it is no longer competent proof of the conviction?

State ex rel. Milton Eugene Warren v. Michael Meisner, 2020 WI 55, 6/11/20, reversing and remanding an unpublished order of the court of appeals, 2019AP567; case activity (including briefs)

Seven years ago, the supreme court decided State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146. That opinion contained a couple of erroneous statements about the procedure for raising claims that postconviction counsel was ineffective. Both parties moved for reconsideration of these statements, which the court inexplicably denied more than a year later. Now with this decision, the court unanimously cleans up the misstatements in Starks, and gives the defendant his day in court.

State v. Mose B. Coffee, 2020 WI 53, 6/5/20, affirming a published court of appeals decision, 2018AP1209; case activity (including briefs)

Under Arizona v. Gant, 556 U.S. 332, 335 (2009), police can search a vehicle after arresting a recent occupant “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” But how do courts decide when it’s “reasonable to believe” this: is it a typical totality-of-the-circumstances analysis examining all the facts around an arrest? Or, as many courts have concluded, do the elements of the crime suspected–the “offense of arrest”–determine categorically when a search is permitted and when it isn’t? A majority of justices in this case would adopt the former view, but, as we’ve often seen lately, their votes are split between the lead and dissenting opinions. This arguably means there’s no binding holding on the question of law; the only thing we know for sure is that the search in this case is upheld.

State v. David Gutierrez, 2020 WI 52, reversing in part a published court of appeals opinion, 6/3/20; case activity (including briefs)

In a 5-0 decision, SCOW affirms all parts of this published court of appeals decision but one. The court of appeals held that the circuit court erred in refusing to admit evidence that excluded Gutierrez as the source of male DNA in the underwear and around the mouth of a victim of child sexual assault. The assaults involved oral sex and attempted vaginal intercourse. SCOW reversed the court of appeals on that point.

State v. Angel Mercado, 2018AP2419-CR, petition for review of a published decision granted 5/19/20; reversed 1/20/21; case activity

Issues (from the State’s petition for review):

1.  Did the court of appeals contravene §901.03(1)(a) when it directly reviewed Mercado’s forfeited challenges to the admission of the victims’ forensic interview videos into evidence?

2.  Did the circuit court court properly admit the victims’ forensic interview videos into evidence at trial?

State v. George E. Savage, 2019AP90-Cr, petition for review of an unpublished option granted, 5/19/20, case activity

Issues (adapted from the State’s petition for review):

1.  Under Hill v. Lockhart, 474 U.S. 52 (1985), when a defendant claims that he received ineffective assistance of counsel in connection with a guilty plea, he must prove that but for his lawyer’s deficient performance  he would have proceeded to trial.  More recently, Lee v. United States, 137 S. Ct. 1958 (2017) held that a defendant can, in some circumstances, prove Strickland prejudice even without a reasonable probability of success at trial.  Given the facts of this case, did Savage prove that he was entitled to withdraw his guilty plea even though he couldn’t show a reasonable probability of success at trial?

2.  State v. Sholar, 2018 WI 53, 381 Wis. 2d 560, 912 N.W.2d 89 holds that a court cannot decide an ineffective assistance of counsel claim if a Machner hearing has not occurred. In Savage’s case, the circuit court did conduct a Machner hearing,  but the court of appeals reversed and remanded on both deficient performance and prejudice because the circuit court misapplied State v. Dinkins, 2012 WI 24, ¶ 5, 339 Wis. 2d 78, 810 N.W.2d 787. Should the court of appeals have affirmed under the rule that the court of appeals may sustain a circuit court decision if there are facts in the record to support it?

Langlade County v. D.J.W., 2020 WI 41, reversing an unpublished court of appeals opinion, 4/24/20; case activity

Wisconsin’s involuntary commitment rate is higher than that of any other state–by a long shot. According to a report for the Substance Abuse and Mental Health Services, the annual commitment rate among states ranges from 0.23 to 43.8 per 1,000 adults with serious mental illness. The average is 9.4 per 1,000, with Wisconsin at 43.8. SCOW’s decision in this case can reduce the number of fait accompli commitment hearings–but only if defense lawyers invoke it and trial courts take it seriously.

State v. Richard H. Harrison, Jr., 2020 WI 35, 4/17/20, reversing an unpublished decision of the court of appeals; case activity (including briefs)

Addressing an unusual issue that is now also effectively moot due to developments in the case since the cross petitions for review were granted, a majority of the supreme court holds that Harrison isn’t entitled to sentence credit or sentence “advancement” toward an earlier sentence for time spent in custody on a consecutive sentence that is later vacated.

Winnebago County v. C.S., 2020 WI 33,  reversing a published court of appeals opinion; 4/10/20; case activity

This is a BIG case for Chapter 51 lawyers! In a 4-3 opinion, SCOW held that when a court commits a prison inmate under Chapter 51, it cannot order involuntary medication without finding the inmate dangerous first. The decision changes trial procedure for inmates commitments, but also has implications for the involuntary medication of non-inmates under  Chapter 51.

State v. Jamie Lane Stephenson, 2018AP2104, petition to review a published court of appeals decision granted 3/17/20; case activity

Issues:

1. To prove that a person meets the criteria for commitment under Chapter 980, must the state present expert opinion testimony that the person is “dangerous” as defined under ch. 980?
2. Should the standard of review of the sufficiency of the evidence of dangerousness in a Chapter 980 case be changed to require that a reviewing court conduct a de novo review of whether the evidence satisfies the legal standard of dangerousness?