On Point: 45. WI Supreme Court

Review of a published court of appeals decision; case activity (including briefs)

Issues (from the petition for review and petition for cross-review)

 1.  Whether the offense under § 343.44(2)(ar)4. can be punished as either a misdemeanor or a felony in order to resolve ambiguity in the statutory language when the legislature’s intent was to create a penalty scheme with increasing penalties for additional elements; or whether, instead, the doctrine of implied repeal should be employed to correct the obvious drafting error that created the ambiguity as to whether the offense is a misdemeanor or a felony.

2.  Whether § 343.44(2)(ar)4., having been interpreted to give discretion to the prosecution to charge an offense as a misdemeanor or a felony, can be constitutionally applied.

3.  Whether the provision in § 343.44(2)(b) stating that the circuit court “shall” consider certain sentencing factors is mandatory or directory.

Review of a published court of appeals decision, 2016 WI App 64; case activity (including briefs)

Issues (from petition for review):

Whether an officer’s justification to search is objectively reasonable where the suspect is not observed doing or saying anything suspicious, but cooperating in circumstances that the officer believes are suspicious?

Whether counsel provided ineffective assistance by failing to present additional evidence to show Floyd did not provide valid consent to the search?

Seifert v. Balink, 2017 WI 2,1/6/17,  affirming a published court of appeals opinion; case activity (including briefs)

It’s true. SCOW’s first decision on §907.02(1), which adopted the Daubert test for the admissibility of expert testimony is 134 pages long and includes 4 separate opinions, but don’t despair. It’s not the mess you imagine. Reading the first 3 opinions by Abrahamson (joined by A.W. Bradley), Ziegler (solo) and Gableman (joined by Roggensack) feels like the kids’ game “spot the difference between these pictures.” They are more alike than different. You might even wonder why the 5 of them couldn’t just sign on to 1 majority opinion. Or you might not. Bottom line: 5 justices affirmed the admission of a medical doctor’s expert testimony even though it was based on his personal experience, not science.

Democratic Party of Wisconsin v. Wisconsin Department of Justice, 2016 WI 100, 12/28/16, reversing a summary disposition of the court of appeals; case activity (including briefs)

Before the November 2014 election, the Democratic Party of Wisconsin filed an open records request for videos of two training presentations made by Brad Schimel, the DA running for Attorney General. The Department of Justice denied the request, but a circuit judge ordered the videos to be released, and the court of appeals affirmed that order. In an opinion that will arguably enhance the ability of prosecutors to deny release of their records—or, as the dissent aptly describes it, will dim or even shut out some of the light meant to be shed by Wisconsin’s “Sunshine Law”—a majority of the supreme court holds the videos don’t have to be released.

Review of an unpublished court of appeals opinion; case activity (including briefs); petition for review

Issues (composed by On Point):

1.  Whether a driver, who is a non-native speaker of English, consents to a blood draw where, in response to the officer’s question “will you consent” gives an unintelligible answer, then clearly asks “what kind of test?” and “don’t you need a warrant?” and where the driver does not otherwise “resist” or “fight” the blood draw?

2.  Whether a driver’s acquiescence to a blood draw is voluntary when it occurs after he asks the officer “don’t you need a warrant?” and the officer shakes his head “no.”

State v. Richard L. Weber, 11/29/16, 2016 WI 96, reversing a per curiam court of appeals decision, 2014AP304-CR; case activity (including briefs)

A deputy activates his emergency lights upon seeing a car with a defective brake lamp weave over a highway fog line. The car slows for 100 feet, turns right into a driveway, and pulls into a garage attached to a house.  The deputy apprehends the driver inside the garage.  Was there a 4th Amendment violation? 

Review of a court of appeals summary disposition; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  Could the defendant be convicted of two counts of hit and run with death resulting for a single act of leaving the scene of an accident that caused two deaths?

(2) Is the defendant’s sentence unduly harsh?

Review of an unpublished per curiam court of appeals decision; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  Was Steinhardt’s right to be free from double jeopardy violated when she was convicted of both party to the crime of First Degree Child Sexual Assault in violation of § 948.02(1)(e) and Failure to Protect a Child from Sexual Assault in violation of § 948.02(3)?

(2)  Did Steinhardt forfeit her right to raise the double jeopardy issue by pleading no contest to the charges?

(3)  Did Steinhardt’s postconviction motion, which alleged trial counsel was ineffective for failing to advise her about the double jeopardy issue, sufficiently allege that she was prejudiced by trial counsel’s failure?

Review of an unpublished court of appeals decision; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  May a prosecutor argue that a defendant’s refusal to submit to a breathalyzer test shows consciousness of guilt?

(2)  When a circuit court denies a postconviction motion based on arguably inapplicable case law, must the defendant ask the circuit court to reconsider its ruling in order to preserve for appeal the claim that the case law doesn’t apply?

On review of a per curiam opinion; case activity (including briefs)

Issues:

1. Which statute governs the service of a subpoena in a criminal case: §885.03 which provides that a subpoena may be left at a witness’s abode or §805.07 and §801.11 which require reasonable diligence to personally serve a witness before leaving the subpoena at her abode?

2. Whether trial counsel was ineffective for failing to argue that he had properly served the witness with a subpoena per §885.03? If not, then whether trial counsel was ineffective for failing to attempt to serve the witness personally before leaving the subpoena at her abode as required by §801.11.