On Point blog, page 27 of 133
SCOW to decide whether courts may impose criminal penalty where suspect refuses a warrantless blood draw
State v. Patrick H. Dalton, 2016AP2483-CR, petition for review 0f an unpublished court of appeals opinion granted 11/13/17; case activity (including briefs)
Issues:
1. Under Missouri v. McNeely and Birchfield v. North Dakota, may a circuit court impose a harsher criminal punishment because a defendant exercised his constitutional right to refuse a warrantless blood draw?
2. Whether Dalton was denied the effective assistance of counsel where his attorney failed to move to suppress blood evidence on grounds that police lacked exigent circumstances to forcibly draw his blood without a warrant?
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?
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?
SCOW to review IAC, sentencing, and cross-appeal issues
State v. Anthony R. Pico, 2015AP1799-CR, petition for review granted 10/10/17; case activity (including briefs)
Issues (composed by On Point):
1. Did the Court of Appeals apply the proper standard of review to the trial court’s findings of fact regarding trial counsel’s conduct and strategy?
2. Did trial counsel perform deficiently by failing to investigate Pico’s serious head injury, and did that deficient performance prejudice Pico in pretrial proceedings and at trial?
3. Did the sentencing court impermissibly burden Pico’s privilege against self-incrimination?
4. Did the Court of Appeals err in concluding that Pico waived issues not raised by cross-appeal?
5. Is it permissible for a postconviction court to admit and consider expert testimony by another criminal defense attorney regarding the conduct of trial counsel?
SCOW to address whether warrantless blood draw of unconscious motorist violates 4th Amendment
State v. Gerald Mitchell, 2015AP304-CR; certification granted 9/11/17; case activity (including briefs)
Issue:
Whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law, where no exigent circumstances exist or have been argued, violates the Fourth Amendment.
SCOW to address claim for a new trial based on newly discovered impeachment evidence
State v. David McAlister, Sr., 2014AP2561, petition granted 9/11/17; affirmed 4/18/18; case activity (including briefs)
Issues (copied from petition for review)
1. The central issue at trial was whether McAlister participated in the charged robberies. The state’s evidence on that point consisted entirely of the allegations of two confessed participants seeking to mitigate the consequences of their own misconduct. The jury knew that the state’s witnesses had a motive to falsely accuse McAlister but those witnesses denied under oath having done so. Under these circumstances, is newly discovered evidence from three separate witnesses swearing that the state’s witnesses admitted prior to trial that they intended to falsely accuse McAlister “cumulative” and “merely tend to impeach the credibility of witnesses” such that it could not support a newly discovered evidence claim?
2. Whether the allegations of McAlister’s §974.06 motion were sufficient to require a new trial and therefore an evidentiary hearing on his claim.
SCOW to review involuntary treatment to competency on appeal
State v. Andre L. Scott, 2016AP2017-CR, bypass granted 9/12/17, case activity (including briefs)
Issues:
1. Whether, despite State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994), a circuit court may use §971.14(4)(b) to require a nondangerous defendant to be treated to competency against his will, and if so, whether §971.14(4)(b) is unconstitutional on its face because it does not comport with Sell v. United States, 539 U.S. 166 (2003).
2. Whether an order requiring an inmate to be involuntarily treated to competency is a nonfinal order that should be challenged by a Wis. Stat. §809.50 petition for interlocutory appeal or a final order of a special proceeding that is appealable as a matter of right via Wis. Stat. §808.03(1).
3. Whether the court of appeals exercises its discretion erroneously when it denies a motion for relief pending appeal without explaining its reasoning.