On Point: 45. WI Supreme Court

Outagamie v. Michael H., 2014 WI 127, 12/16/14, affirming an unpublished court of appeals decision, majority opinion by Justice Crooks; case activity

Section 51.20(1)(a)2.a authorizes the involuntary commitment of a person who is “dangerous,” a test that may be met by showing recent threats of, or attempts at, suicide. This unanimous decision holds that in the right circumstances just thinking about suicide–without articulating a plan for committing it–constitutes a sufficient “threat” to satisfy the involuntary commitment statute.

Practitioners take note. This opinion holds the seeds of controversy.  SCOW’s ruling–that forcing a defendant to bare his teeth to the jury does not violate the 5th Amendment–is not so surprising.  But Chief Justice Abrahamson’s concurrence, which announces the elimination of “opinion conferences” and new restrictions on the preparation of concurring and dissenting opinions seems alarming.

State v. Myron C. Dillard, 2014 WI 123, 11/26/14, affirming a published court of appeals decision, 2013 WI App 108; majority opinion by Chief Justice Abrahamson; case activity

Dillard accepted a plea bargain under which the state dropped a persistent repeater allegation, which carried a mandatory sentence of life without the possibility of release. But Dillard was never really subject to the persistent repeater law. When he discovered this fact after he was sentenced, he moved to withdraw his plea on the ground his decision to accept the plea bargain was based on his mistaken belief—one shared by the prosecutor, his lawyer, and the court—that he was facing a mandatory life sentence if he was convicted after a trial. The supreme court holds he is entitled to plea withdrawal because his plea was not knowing and voluntary and because his trial lawyer was ineffective for failing to discover the persistent repeater law never applied to Dillard.

Review of a published court of appeals decision; case activity: 2013AP1753-CR; 2013AP1754-CR

Issue (composed by On Point)

Does Guarnero’s conviction for violating the Federal Racketeer Influenced and Corrupt Organizations (RICO) Act qualify as a prior offense under the repeat drug offender enhancement provision of § 961.41(3g)(c) because the RICO conviction’s predicate acts involved, among other things, controlled substance offenses, thus making the RICO conviction a conviction for a crime “under a statute … relating to controlled substances”?

Review of a published court of appeals decision; case activity

Issue (composed by On Point)

When additional sentence credit is granted after an offender’s parole has been revoked, is the additional credit applied to the offender’s term of reincarceration, or to the remaining period of parole?

Consolidated review of two published court of appeals decisions: State v. Weissinger, 2014 WI App 73 (case activity); and State v. Luedtke, 2014 WI App 79 (case activity)

Issues (composed by On Point)

In light of State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, does the Wisconsin Constitution provide greater due process protection than the federal constitution, such that defendants charged with operating with a detectable amount of a controlled substance in their blood are denied due process under the Wisconsin Constitution when their blood samples are destroyed before the defendants had notice of the charges or test results and thus had no chance to get the blood independently tested?

Does the offense of operating with a detectable amount of controlled substances in the blood violate due process by failing to require the state to prove that the defendant knowingly ingested the controlled substance?

Review of an unpublished court of appeals decision; case activity

Issues (composed from the State’s Petition for Review)

Did the police have probable cause to arrest Dean Blatterman for operating with a prohibited alcohol concentration, where police were aware Blatterman had three prior OWI convictions, and thus had a .02 PAC threshold?

Did the police have a legitimate community caretaker concern when they transported Blatterman ten miles from the site of the traffic stop to a hospital?

On review of an unpublished court of appeals decision; case activity

Issues (composed from the State’s Petition for Review)

In granting Kucharski a new trial on the issue of mental responsiblity under the miscarriage of justice prong of § 752.35, did the court of appeals substitute its judgment for that of the trial court on issues that are within the sole province of the finder of fact, so that the appellate court’s decision conflicts with this court’s decision in State v. Sarinske, 91 Wis. 2d 14, 280 N.W.2d 725 (1979)?

Should a defendant be entitled to a new trial on the affirmative defense of mental disease or defect under the miscarriage of justice prong of § 752.35 where the court of appeals does not find any error or unfairness in the defendant’s trial, but determines there is a substantial probability of a different result on retrial only by substitution its judgment for that of the fact-finder on issues that are the province of the fact-finder alone?

On review of a per curiam unpublished court of appeals decision; case activity

Issue (composed by On Point)

Did the circuit court violate Jesse Herrmann’s due process right to an impartial judge by exhibiting objective bias in sentencing Herrmann?

On review of a published court of appeals decision; case activity

Issue (composed by On Point)

Was Griep’s right to confront the witnesses against him violated by allowing the supervisor of an unavailable lab analyst to testify to his opinion about the defendant’s BAC based entirely on the report prepared by the unavailable analyst?