On Point: 45. WI Supreme Court

Review of an unpublished court of appeals decision; case activity (including briefs)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Whether the retroactive application of provisions of 2011 Wisconsin Act 38, which repealed provisions of 2009 Wisconsin Act 28 that gave inmates the opportunity to apply for early release, increases an offender’s penalty and therefore violates the ex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Review of an unpublished per curiam court of appeals decision; case activity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?

State of Wisconsin ex rel. Two Unnamed Petitioners v. The Honorable Gregory Peterson et al.; State of Wisconsin ex rel. Francis D. Schmitz v. the Honorable Gregory Peterson, & State of Wisconsin ex rel. Three Unnamed Petitioners v. The Honorable Gregory Peterson, et al., 2015 WI 85, issued 7/16/15; case activity: Two Unnamed Petitioners; Schmitz v. Peterson; Three Unnamed Petitioners

Unless you’ve just returned from a trip to a remote corner of the globe that’s beyond the reach of news media, you know by now that the Wisconsin Supreme Court decided the so-called “John Doe” cases. The court’s decision ordered a halt into the investigation of coordinated fundraising and spending between candidate committees and certain independent groups during the 2011-12 recall campaigns. Gargantuan by any standard, the decision goes on for almost 400 pages, with a majority opinion, two concurrences (Prosser and Ziegler), and two dissents/concurrences (Abrahamson and Crooks). It contains almost nothing of relevance to ordinary criminal law practice. However, in the interest of helping orient readers who may want to look more closely at the decision, below the break is a summary of the major issues and how the various opinions address them.

State v. Jesse L. Herrmann, 2015 WI 84, 7/15/15, afffirming an unpublished per curiam court of appeals decision; case activity (including briefs)

All seven justices agree Herrmann’s due process right to an impartial judge wasn’t violated in this case, as the sentencing judge’s remarks didn’t establish the judge was was objectively biased against Herrmann. Two separate concurrences consisting of four justices, however, express displeasure with (or attempt to limit, at least with respect to recusal) the objective bias test as established in previous Wisconsin and U.S. Supreme Court cases.