On Point: 45. WI Supreme Court

Sheboygan County v. M.W., 2022 WI 40, reversing an unpublished court of appeals opinion; case activity

The crisp majority opinion of this 50-page split decision confirms a narrow but important point of law for ch. 51 cases. When an appellate court reverses a commitment order that has expired, the circuit court lacks competency to conduct remand proceedings in the case. The majority opinion does not address whether, in all cases, an appellate court must reverse a “D.J.W. error” outright or whether it may instead conduct a harmless error analysis. The dissent does not fully grasp this point and thus presents a long, confusing attack on an imaginary majority opinion.

State v. Theophilous Ruffin, 2022 WI 34, reversing an unpublished court of appeals decision; case activity (including briefs)

This case doesn’t break new ground or develop existing law. Instead, it reverses the court of appeals for not applying the standard a circuit applies when deciding whether to hold an evidentiary hearing on a postconviction motion that alleges ineffective assistance of trial counsel.

Daniel Doubek v. Joshua Kaul, 2022 WI 31, 5/20/22, on certification from the court of appeals; case activity (including briefs)

A person convicted of a “misdemeanor crime of domestic violence” as defined under federal law, 18 U.S.C. § 921(a)(33)(A), is barred from possessing a gun under federal law and, therefore, from getting a license to carry a concealed weapon in Wisconsin, § 175.60(3)(b). A unanimous supreme court holds that a violation of § 947.01(1) is not a misdemeanor crime of domestic violence.

State v. Nhia Lee, 2019AP221-CR, petition dismissed as improvidently granted, 5/24/22; case activity (including briefs)

SCOW presumably took this case in order to address one or both of these issues: (1) whether a circuit court must appoint counsel at the county’s expense when the SPD is unable to do so within 10 days of the defendant’s initial appearance; and (2) whether Lee was denied the right to counsel, due process and a speedy trial as he sat in jail for over 100 days waiting for a lawyer. After briefing and oral argument, 5 justices voted to dismiss his petition as improvidently granted.

State v. Percy Antione Robinson, 2020AP1728-CR, certification granted 5/18/22; case activity (including briefs); ; remanded  5/10/23

Question presented:

The 4th Amendment requires that a judicial officer determine probable within 48 hours of a warrantless arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Milwaukee County complies with this mandate by having the judicial officer review a sworn affidavit from law enforcement and set initial bail. This procedure does not require the accused to appear in person. The judicial officer simply conducts a paper review and completes a CR-215 form. Does this procedure trigger the accused’s right to counsel?

State v. Joseph G. Green, 2022 WI 30, 5/13/22, limiting in part and affirming in part, a published court of appeals decision; case activity (including briefs)

Section 971.14(5)(a)1 provides that a defendant’s commitment for treatment to competency cannot exceed 12 months or his maximum sentence, whichever is less. So the State argued that if a defendant appeals an involuntary medication order, this period must be tolled, otherwise the appeal time will consume the commitment period. SCOW unanimously rejects that argument. Unfortunately, a majority then “limits” State v. Scott‘s automatic stay of involuntary med orders to those entered during postconviction proceedings. In truth, SCOW eliminated the automatic stay.

State v. Teresa L. Clark, 2022 WI 21, 4/20/22, reversing the circuit court on bypass, case activity (including briefs)

A defendant may collaterally attack a prior OWI conviction if she was not represented by counsel and did not knowingly, intelligently, and voluntarily waive the right to counsel during that proceeding. Once she points to evidence of this claim, the burden shifts to State to prove a valid waiver. In a split opinion, SCOW now holds that if the transcript of the prior OWI hearing is unavailable, the burden doesn’t shift. The defendant must prove that her right to counsel was in fact violated–which is virtually impossible.

State v. Robert K. Nietzold, Sr., 2021AP21-CR, petition for review of an unpublished court of appeals decision granted 4/13/22; case activity (including briefs and PFR)

Issue presented (composed by On Point based on the state’s PFR)

Was the state’s breach of its plea agreement with Nietzold remedied by the prosecutor’s withdrawal of the erroneous recommendation and restatement of the correct recommendation?

State v. Jeffrey L. Hineman, 2020AP226-CR, petition for review of a per curiam opinion granted 4/13/22; reversed 1/10/23; case activity (including briefs)

Issues (from the State’s petition for review)

1. In cases involving credibility contests between a complaining witness (here, S.S.) and the defendant (Hineman), to what extent can a reviewing court reweigh the witnesses’ credibility in assessing whether, based on omitted evidence, there was a reasonable likelihood of a different result under the Brady materiality or Strickland prejudice standards?

2. The court of appeals also reached an abandoned Shiffra/Green issue and ordered in camera review of S.S.’s therapy files from his private therapist because the therapist acted as a mandatory reporter.

State v. Daniel J. Van Linn, 2022 WI 16, 3/24/22, affirming an unpublished court of appeals decision; case activity (including briefs)

After Van Linn refused to consent to a blood draw, police ordered one to be taken even though they didn’t have a warrant or exigent circumstances. After the circuit court suppressed the results of the test of this illegal blood draw, the state obtained the same evidence using a subpoena for Van Linn’s medical records. The supreme court holds that, under the “indepedent source” doctrine, the evidence obtained with the subpoena should not be suppressed even though the state sought the subpoena after the suppression of the same evidence obtained with the illegal blood draw.