On Point: 45. WI Supreme Court

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.

OLR v. Peter J. Kovac, 2016 WI 62, 7/8/16; case activity

The supreme court suspended an attorney’s license for 90 days for professional misconduct in two criminal matters, including violating SCR 20:1.16(d) by failing to promptly provide the clients’ files to postconviction counsel. (¶¶5-6, 8, 9-10, 12). Because the attorney did not file an answer or defend against the OLR complaint,

State v. Leopoldo R. Salas Gayton, 2016 WI 58, 7/6/16, affirming an unpublished court of appeals opinion, 2014 WI App 120, 358 Wis. 2d 709, 856 N.W.2d 345; case activity (including briefs)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

State v. Mastella L. Jackson, 2016 WI 56, 7/1/16, affirming a published decision of the court of appeals, 2015 WI App 49, 363 Wis. 2d 553, 866 N.W.2d 768; case activity (including briefs)

Despite the “flagrant” and “reprehensible” violations of Jackson’s Fifth Amendment rights by police, the supreme court holds that physical evidence seized based in part on information obtained from those violations should not be suppressed because the evidence would have been inevitably discovered. In the course of this ruling, the court alters Wisconsin’s long-established inevitable discovery standard and refuses to rule out using the doctrine in cases where the police intentionally violate a suspect’s rights.

State v. McKellips, 2016 WI 51, 6/28/16, reversing a published court of appeals decision, 2015 WI App 31; case activity (including briefs)

SCOW here defines the phrase “computerized communication system” by separately defining each word, and then lumping together those definitions to conclude that text messages sent with a flip phone constitute “use of a computerized communication system.” It concludes that Wis. Stat. §948.075 is understood by persons of ordinary intelligence, and is therefore not unconstitutional; and that the circuit court’s jury instructions, while not perfect, were close enough. Additionally,  SCOW reminds the court of appeals that discretionary reversals under §752.35 are only for “exceptional cases.”

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

Issue (from the State’s Petition for Review)

Did the court of appeals misapply State v. Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884, when it held that a defendant seeking postconviction DNA testing of “relevant” evidence under § 974.07(2) need not demonstrate that the physical evidence “contains biological material or on which there is biological material” as provided under § 974.07(6)(a)2.?

In reviewing a motion for DNA testing at State expense under § 974.07(7)(a), must a circuit court always assume that a DNA test result will be exculpatory?

In assessing whether it is “reasonably probable” that a defendant would not have been convicted if exculpatory DNA results had been available, should a circuit court apply a newly discovered evidence standard?

Did the circuit court erroneously exercise its discretion under § 974.07(7)(a) when it found that the jury would have convicted Denny even if exculpatory DNA results were present?

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

Issues (from petition for review):

Does Wis. Stat. §19.356 preclude petitioners from seeking a declaratory judgment that the DOJ’s alias name policy violates Wisconsin’s public records law?

Don’t be misled by the bland statement of the first issue. Teague has asked SCOW to decide whether the DOJ should be allowed to hand out false criminal history records about innocent people in response to open records requests.

On review of a published court of appeals opinion; case activity (including briefs)

Issues (from petition for review):

Does Wisconsin Open Records Law require the records custodian of a local law enforcement agency to produce federal immigration detainer hold documents (I-247s) received from U.S. Immigration and Customs Enforcement (ICE), despite the specific prohibition contained in 8 C.F.R. §236.6.

In the alternative, does the balancing test set forth under the Wisconsin Open Records Law weigh in favor of the non-production of these same federal immigration detainer hold documents received by a local law enforcement agency from ICE?

On review of a court of appeals certification; case activity (including briefs)

Issue (from certification)

Whether an offender whose parole and extended supervision was revoked after a revocation hearing has an adequate remedy other than a writ of habeas corpus to pursue a claim that the attorney who represented him during the hearing rendered constitutionally ineffective assistance? Specifically, must the offender raise a claim of ineffective assistance of revocation counsel in a motion to the division of hearings and appeals (DHA) in the department of administration?