On Point: 2017-18 Term

State v. Jamal L. Williams, 2016AP883-CR, 2018 WI 59, 5/30/18, reversing in part, a published court of appeals opinion, 2017 WI App 46, case activity (including briefs)

In a 5-0 opinion (Roggensack and A.W. Bradley did not participate) SCOW overruled two court of appeals decisions, State v. Elward and State v. Radaj, which had held that the §973.046  mandatory DNA surcharge violated the Ex Post Facto Clauses of the state and federal constitutions. SCOW delved into the reasoning of both cases and found it “faulty.” It further held that a circuit court may consider a defendant’s opposition to paying restitution as part of his character or lack of remorse when choosing a sentence.

State v. Shaun M. Sanders, 2018 WI 51, 5/18/18, affirming a published court of appeals decision, 2017 WI App 22, case activity (including briefs)

The state can criminally punish a person for something he or she did as a small child.

State v. Lamont Donnell Sholar, 2018 WI 53, 5/18/18, affirming an unpublished court of appeals opinion, 2016AP897-CR, case activity

Appellate lawyers will want to pay attention to this decision because it clarifies the law and procedure governing claims for ineffective assistance of trial counsel. In particular, resolving an issue of first impression, it holds that in a multi-count case, trial counsel’s ineffective assistance doesn’t automatically result in a new trial on all counts. In this case, SCOW affirmed a decision ordering a new trial on just 1 of 6 counts.

State v. DeAnthony K. Muldrow, 2018 WI 52, 5/18/18, affirming a published court of appeals decision, 2017 WI App 47; case activity (including briefs)

A unanimous supreme court holds that lifetime GPS monitoring is not punishment, so a judge doesn’t have to advise a defendant that he or she is pleading to a crime that will require lifetime monitoring.

State v. Anthony Jones, 2018 WI 44, 5/4/2018, affirming an unpublished summary order, 2015AP2665, case activity

We noted in our post on the grant of Jones’s PFR that at the time there were “exactly zero Wisconsin appellate cases holding expert testimony inadmissible under Daubert.” That’s still true.

State v. David McAlister, Sr., 2018 WI 34, 4/17/18, affirming an unpublished court of appeals order, 2014AP2561; case activity

A jury convicted McAlister in 2007 of three counts having to do with an attempted and a completed armed robbery. The state’s case was founded on the testimony of two men (Jefferson and Waters) who had committed the crimes: they said McAlister was also involved. At trial, McAlister’s counsel impeached them by showing they had received consideration from the state in exchange for their testimony. But he couldn’t provide any direct evidence they had lied. Now he can, but the SCOW majority says it’s not good enough, even to get a hearing on his motion.

State v. David Hager, Jr. and State v. Howard Carter, 2018 WI 40, 4/19/18, reversing (Hager) and affirming (Carter) published court of appeals decisions, 2015AP330 & 2015AP1311, case activity (Hager) (Carter)

With these consolidated cases our supreme court maintains its perfect record for the term: it has decided every single criminal/commitment case as the state has requested. It does so here with splintered opinions that fail to generate a holding. The result is that we have no binding precedent on the 2013 amendments to Wis. Stat. § 980.09–the standard a committed person must meet to receive a discharge trial. Or do we? It’s basically anybody’s guess. Hang on.

Winnebago County v. J.M., 4/18/18, 2018 WI 37, affirming an unpublished court of appeals opinion, 2016AP619, case activity.

This opinion will interest lawyers who handle Chapter 51 cases and appellate lawyers of all stripes. It establishes that persons undergoing Chapter 51 mental commitments are entitled  to the effective assistance of counsel and formally adopts the Strickland test for ineffective assistance. It further holds that, due to the overwhelming evidence of dangerousness in this case, J.M. was not prejudiced when his counsel failed to object to him appearing before the jury wearing prison clothes accompanied by uniformed guards–even as he testified. Of particular interest to appellate lawyers, SCOW granted a motion to strike significant parts of Winnebago County’s oral argument because its lawyer asserted facts outside the appellate record.

State v. Brian Grandberry, 2018 WI 29, affirming an unpublished court of appeals decision, 2016AP173; case activity (including briefs)

Here’s the upshot: the majority opinion here means that, if you don’t have a concealed carry permit, you can’t have a handgun “concealed” in your car, unless it’s out of your reach. How will you know if it’s out of your reach? Simple: you’ll consider the location of the gun and yourself, the size of your vehicle, and your ability to reach the gun, and then you’ll “find guidance in [SCOW] precedent and common sense.” (¶31). While you’re considering all these things you should maybe also consider how, say, a police officer might consider them. Or a prosecutor. Or a jury. Because if they reach a different conclusion, well, that’s gonna be a problem.

State v. Gerrod R. Bell, 2018 WI 28, 4/10/18, affirming an unpublished court of appeals opinion, 2015AP2667-2668-CR; case activity (including links)

A defendant is presumed innocent until the State proves him guilty beyond a reasonable doubt. That’s what the Constitution says. Yet, in this child sexual assault case, the State cleverly told jurors that they could not acquit the defendant unless they believed his accusers had lied about the alleged assaults and unless they had evidence of the victims’ motive for lying.  Bell argued that this prosecution strategy impermissibly shifted the burden of proof to him. In a 3-1-1 opinion, SCOW approved the strategy and ruled against him.