On Point blog, page 20 of 133
Judge disciplined for ex parte communications, independent factual research, bias
In re Judicial Disciplinary Proceedings Against Piontek, 2019 WI 51, 5/21/19; case activity
The supreme court suspends Judge Michael Piontek from office for five days for “obviously unethical” and “clearly improper” misconduct in two criminal cases.
SCOW to decide if failing to object to consideration of information at sentencing forfeits right to review
State v. Carrie E. Counihan, 2017AP2265-CR, petition for review granted 5/14/19, and State v. Donavinn Coffee, 2017AP2292-CR, petition for review granted 5/14/19; case activity (Counihan; Coffee)
Issues:
Does a defendant forfeit his right to challenge a judge’s consideration of information at sentencing by failing to object to the information at the time of sentencing?
If trial counsel does not object to the court’s consideration of the information and the defendant alleges postconviction that trial counsel was ineffective for failing to object, what is the standard for determining whether trial counsel’s failure was prejudicial?
SCOW: Circuit courts lack inherent authority to reduce or terminate a term of probation
State v. Dennis L. Schwind, 2019 WI 48, affirming a court of appeals’ summary disposition in 2017AP141-CR, 5/3/19; case activity (including briefs).
Section 973.09(3)(d) gives circuit courts authority to reduce or terminate a term of probation if 6 requirements are met. Schwind did not proceed under that statute because he couldn’t satisfy the requirements. So he argued that circuit courts also have inherent authority to reduce or terminate a term of probation for cause. State v. Dowdy, 2012 WI 12, left this question open. This 5-2 opinion shuts it: No, circuit courts don’t have that authority.
SCOW: Police asking driver about weapons is part of any traffic stop’s “mission”
State v. John Patrick Wright, 2019 WI 45, reversing an unpublished court of appeals decision; case activity (including briefs)
The supreme court holds (again) that, as part of any routine traffic stop, police may ask a driver whether he or she is carrying a weapon.
SCOW splits 3-3 over when a defendant’s right to counsel attaches
State v. Nelson Garcia, Jr., 2019 WI 40, 4/19/19; case activity (including briefs)
ASPD Pam Moorshead briefed this appeal and argued it to SCOW less than two weeks ago. The lead issue was whether the Sixth Amendment right to counsel attaches upon the finding of probable cause and setting of bail by a court commissioner. Justice Abrahamson withdrew from participation leaving only 6 justices to decide the case.
SCOW will weigh in on aggregation of retail theft charges
State v. Autumn Marie Love Lopez & Amy J. Rodriguez, 2017AP913-CR & 2017AP914-CR, petition for review granted 4/9/19; case activity (including briefs)
Issue:
Does either Wis. Stat. § 971.36 or inherent prosecutorial charging discretion allow a prosecutor to charge a single felony count of retail theft for multiple separate acts of theft, each involving less than $500 in merchandise, committed over a span of time?
Once waived, always waived? SCOW will decide
State v. Matthew C. Hinkle, 2017AP1416-CR, petition for review granted 4/9/19; affirmed 11/12/19; case activity (including briefs)
Issue:
Once a juvenile has been waived into adult court by one circuit court, must the juvenile always be subject to adult court jurisdiction in any other cases?
SCOW to decide what quantum of information triggers a warrantless search under Act 79
State v. Roy S. Anderson, 2017AP1104-CR, petition for review granted 4/9/19; case activity (including briefs)
Issues:
What constitutes sufficient knowledge of an offender’s community supervision status where an officer wants to search him pursuant to 2013 Wisconsin Act 79?
Whether the officers in this case had reasonable suspicion to search Anderson pursuant to Act 79.
SCOW to address the test for determining the scope of jeopardy in successive prosecutions
State v. Alexander M. Schultz, 2017AP1977-CR, petition for review granted 4/9/19; case activity (including briefs)
Issues (derived from petition for review):
When determining whether two offenses charged in successive prosecutions are the same in fact for purposes of the Double Jeopardy Clause, how does the court determine the scope of jeopardy when the charged timeframe is ambiguous?
When there is ambiguity in the timeframe of the charging document who bears the burden resulting from the ambiguity–the defendant or the State?
SCOW: Courts may misinform–or not inform–defendants pleading NGI of their maximum period of commitment
State v. Corey R. Fugere, 2019 WI 33, 3/28/19, affirming a published court of appeals decision; case activity (including briefs)
Pretend you’re a defendant trying to decide whether to enter a plea. You know that maximum term of imprisonment you face. You also know that pleading NGI is one of your options. However, the circuit court doesn’t tell you (or perhaps misinforms you) about the nature and length of the commitment that will follow from pleading NGI. How can you make a knowing, intelligent, and voluntary NGI plea if you don’t know the consequences of it?