On Point: 45. WI Supreme Court

Seifert v. Balink, 2015 WI App 59, petition for review granted 11/4/15; affirmed, 2017 WI 2; case activity (including briefs)

While this case involves a medical malpractice claim rather than an issue of criminal law, On Point thought it worth noting because it will be the first time the Wisconsin Supreme Court will address the admissibility of expert opinion evidence since § 907.02(1) was revamped to adopt Federal Rule of Evidence 702 and, by extension, the interpretation of FRE 702 by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

On review of a court of appeals certification; case activity

Issue (from certification)

Does a defendant’s right to due process prohibit a circuit court from relying on COMPAS assessments when imposing sentence, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity, or because COMPAS assessments take gender into account.

Review of an unpublished court of appeals decision; case activity (including briefs)

Issue (composed by the order granting review)

Whether a sentencing court may rely on a defendant’s illegal immigrant status as a factor in fashioning a sentence; and if such reliance is improper, whether it is structural error or subject to harmless error analysis.

Review of a published court of appeals decision; case activity;  petition for review; response and cross petition; order granting review

Issues (from Singh’s petition and the State’s cross petition)

Whether the retroactive application of provisions of 2011 Wisconsin Act 38, which repealed provisions of 2009 Wisconsin Act 28 that gave inmates the opportunity to apply for early release, increases an offender’s penalty and therefore violates the ex post facto clauses of the federal and state constitutions.

If retroactive application of Act 38 in general violated the ex post facto clauses, did Act 38’s change in the procedure for granting release under one of the early release provisions (positive adjustment time, or PAT) violate the ex post facto clauses.

Review of a published court of appeals decision; case activity

Issue (composed by On Point)

Is an elected district attorney a public “employee” who may enjoin the release of records under the open records law because they relate to employee discipline?

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

Issues (composed by On Point from the PFR)

1. Does the inevitable discovery doctrine require the State to show that information gained through police misconduct did not prompt or influence the purportedly lawful investigation?
2. Does the inevitable discovery doctrine require the State to show that it was actively pursuing an alternative line of investigation prior to the illegal conduct?
3. Does the Wisconsin Constitution bar use of the inevitable discovery doctrine to allow admission of evidence obtained through an intentional violation of constitutional rights?

Review of an unpublished per curiam court of appeals decision; case activity

Issues (copied from the State’s PFR here):

Crimes may be joined in one trial if they are similar or if they are connected as part of a common plan. Here, the court of appeals reversed Salinas’ conviction because it decided allegations that he sexually assaulted his girlfriend’s child, and that he intimidated his girlfriend and her child, were not similar acts or connected as part of a common plan. Is the court of appeals’ decision in conflict with the well-established rule that joinder of charges must be broadly construed?

Improper joinder is subject to harmless error review. Here, the evidence of sexual assault and victim intimidation was overhwleming. Did the court of appeals err in concluding that the joinder of the charges was not harmless?

Review of an unpublished per curiam court of appeals decision; case activity

Issues (derived from the court of appeals opinion):

Whether, in order to get an evidentiary hearing, a defendant’s postconviction motion to withdraw his plea because he did not understand the “read-in” concept  must allege that he would have pled differently if  he had understood the “read-in” concept? See State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996).

Review of an unpublished per curiam court of appeals decision; affirmed 2016 WI 17; case activity (for 2014AP1248-CR, which links to the other consolidated cases)

Issues (composed by On Point from the PFR)

Where the State agreed to cap its sentence recommendation on four cases at the “high end” of the recommendation of the presentence investigation (PSI) and the PSI did not recommend whether the sentences in the cases should be served concurrently or consecutively, did the State breach the plea agreement by recommending consecutive sentences?

Was there a sufficient factual basis for a plea to party to the crime of felony theft for “taking and carrying away” property when the defendant had no knowledge of the theft, but only received the stolen property and then moved it to a different location?

Review of an unpublished court of appeals decision; affirmed 2016 WI 26; case activity (including briefs)

Issues (composed by On Point)

Does a defendant have the right to testify at the mental responsibility phase of a bifurcated criminal proceeding?

If so, is an on-the-record colloquy regarding the waiver of the right to testify required?