On Point: 45. WI Supreme Court

State v. Richard E. Houghton, 2015 WI 79, 7/14/14, reversing an unpublished court of appeals opinion, 2013AP1581-CR; majority by Prosser, dissent by Abrahamson (joined by Bradley); case activity (including briefs)

You’ve seen this before. An officer makes a traffic stop based on a “misunderstanding” of the law, then conducts a search and finds incriminating evidence.  Last July, in State v. Antonio Brown, SCOW held that a seizure based on such a mistake violates the 4th Amendment. Six months later, SCOTUS reached the opposite result in Heien v. North Carolina. In this case, SCOW overturns Brown to hold that: (1) “pretextual stops . . . are not per se unreasonable under the 4th Amendment”; (2) probable cause is never required for a traffic stop; (3) the officer here “misunderstood” multiple provisions of Ch. 346, but his mistakes were “objectively reasonable”; and (4) Article I §11 of Wisconsin’s Constitution extends no further than the 4th Amendment. Slip op. ¶¶ 4, 5, 6, 50.

State v. Shata, 2015 WI 74, 7/9/15, reversing an unpublished court of appeals decision, 2013AP1437-CR; majority opinion by Ziegler, dissenting opinion by Bradley (joined by Abrahamson); case activity (including briefs)

State v. Ortiz-Mondragon, 2015 WI 73, 7/9/15, affirming a published court of appeals decision, 2013AP2435-CR, majority opinion by Justice Ziegler, dissenting opinion by Bradley (joined by Abrahamson); case activity (including briefs)

In a pair of 5-2 decisions, the Wisconsin Supreme Court held that defense attorneys provided adequate advice about immigration consequences.  In each case, the defendant sought withdrawal of his guilty plea because he had not been properly advised regarding the mandatory adverse immigration consequences of conviction.

As described below, the cases presented different circumstances regarding the nature of the convictions and the advice given by the attorney.  Nonetheless, the following points seem clear regarding the court’s interpretation of Padilla v. Kentucky: 1) the court is narrowly interpreting the obligations of defense attorneys under Padilla; 2) the court does not believe that deportation is ever automatic or mandatory; and 3) if the information or advice provided was accurate, the court will find that the attorney’s performance was adequate, regardless of extent of legal research that the attorney conducted.

State v. Patrick Hogan, 2015 WI 76, 7/10/2015, affirming a court of appeals per curiam decision, 2013AP430-CR, majority opinion by Prosser; concurrence by Ziegler, dissent by Bradley (joined by Abrahamson); case activity (including briefs)

Sixteen seconds. It takes longer than that just to find your keys, get into your car, buckle up and start your engine. Keep that in mind as you read on. SCOW found that a traffic stop (due to a seatbelt violation) was unconstitutionally extended to perform field sobriety tests, but then upheld the subsequent vehicle search based on consent given 16 seconds after law enforcement told Hogan he was “free to leave.” SCOW saw no need to perform an attenuation analysis.

State v. Rogelio Guarnero, 2015 WI 72, 7/9/15, affirming a published court of appeals decision; majority by Roggensack; dissent by Bradley (joined by Abrahamson); case activity (including briefs)

In a decision that is short on analysis and long on Sixth Amendment problems, the supreme court holds that Guarnero’s prior conviction for conspiring to violate the Federal Racketeer Influenced and Corrupt Organizations (RICO) Act was a conviction for a crime “under a statute … relating to controlled substances,” and therefore qualified as a prior offense under the repeat drug offender enhancement provision of § 961.41(3g)(c), because the factual basis for the conviction involved controlled substance offenses.

State v. Maltese Lavele Williams, 2015 WI 75, 7/10/15; majority by Prosser: concurrence by Abrahamson; on certification from the court of appeals; case activity (including briefs)

All jury instruction errors are to be assessed for whether the error was harmless, the supreme court declares, including errors describing a theory of criminal culpability that was not presented to the jury or omitting a valid theory that was presented to the jury. The court therefore abrogates State v. Wulff, 207 Wis. 2d 143, 557 N.W.2d 813 (1997), which held that a jury instruction accurately setting out a legal basis for liability that does not fit evidence presented at trial should be assessed for whether the evidence was sufficient to support the basis for liability in the instruction.

Adam R. Mayhugh v. State, 2015 WI 77, 7/10/15, affirming a court of appeals summary disposition, 2013AP20123; majority by Bradley; concurrence by Gableman; case activity (including briefs)

While the SPD does not represent clients in lawsuits against the DOC, attorneys may get questions about this case. Staff at Redgranite Correctional ordered Mayhugh to sit in the bleachers of the institution’s recreation yard and watch a baseball game.

State v. Corey R. Kucharski, 2015 WI 64, reversing an unpublished court of appeals decision; majority opinion by Crooks; dissent by Bradley (joined by Abrahamson);  case activity (including briefs)

If you thought defending a discretionary reversal in SCOW was tough before, it just got tougher. Kucharski pled “no contest” to killing his parents but claimed he was not guilty by reason of mental illness due to schizophrenia. Voices told him to commit the murders. He had not been diagnosed with schizophrenia, but 3 doctors supported his NGI defense. The State presented no witnesses, yet the circuit court found that Kucharski failed his burden of proof. The court of appeals granted a new trial in the interests of justice. In a split decision, SCOW reversed and changed the “discretionary reversal” standard.

State v. Andrew Obriecht, 2015 WI 66, 7/7/15, reversing a published court of appeals decision; case activity (including briefs)

When sentence credit is granted after a convicted defendant’s parole is revoked, the additional credit must be applied to the parolee’s reincarceration time, and not—as the Department of Corrections and the court of appeals thought—to any period of parole remaining after the reincarceration time is served.

State v. Jesse J. Delebreau, 2015 WI 55, 6/16/15, affirming a published court of appeals decision; majority opinion by Prosser, concurrence by Roggensack, dissent by Abrahamson; case activity (including briefs)

Last time SCOW addressed a defendant’s waiver of the right to counsel after being charged with a crime, the result was 5 separate opinions. Discerning the rule of State v. Forbush required clairvoyance. Here, SCOW holds definitively that a defendant’s waiver of his right to counsel in an interrogation before he is charged (under the 5th Amendment) is sufficient to waive his  right to counsel after he is charged (under the 6th Amendment) even though he has appeared in court with a public defender. Despite being represented by an attorney, the defendant must affirmatively invoke his right to counsel. The result is the same under Article 1 §7 of the Wisconsin Constitution.

State v. Raheem Moore, 2015 WI 54, 6/16/15, affirming a published decision of the court of appeals; majority opinion by Justice Prosser; case activity (including briefs)

The supreme court affirms the court of appeals’ conclusion that 15-year-old Raheem Moore’s confession was voluntary, but it rejects the court of appeals’ reading of § 938.31, which requires juvenile confessions to be recorded unless the juvenile “refused to respond or cooperate” with the interrogation if it was being recorded, § 938.31(3)(b) and (c)1.