On Point blog, page 15 of 104
SCOW establishes how to appeal “involuntary treatment to competency” orders; orders lower courts to automatically stay involuntary med orders
State v. Andre L. Scott, 2018 WI 74, 6/20/18, reversing a circuit court order on bypass, case activity (including briefs).
Ruling 7-0 for the defendant, SCOW reversed a circuit court order requiring involuntary treatment to competency for postconviction proceedings because the circuit court failed to follow State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994). It also established a process for appealing an order finding a defendant incompetent and requiring involuntary treatment to competency. And–very importantly–it held that lower courts must automatically stay involuntary medication orders pending appeal. Note that aspects of this decision apply to pre-trial and trial competency proceedings as well as postconviction competency proceedings.
SCOW finds no problem with problematic jury instructions on self-defense, accident
State v. Joseph T. Langlois, 2018 WI 73, 6/20/18, affirming a published court of appeals decision, 2017 WI App 44; case activity (including briefs)
A majority of the supreme court concludes that the jury instructions given in this case, when viewed in their entirety, accurately stated the law the jury needed to decide the case. Two dissenting justices disagree, concluding that when considered in their entirety, the instructions could have led the jury astray.
SCOW addresses counsel’s duty to investigate client’s brain injury, clarifies when lawyer may testify as expert at Machner hearing
State v. Anthony R. Pico, 2018 WI 66, 6/15/18, affirming a split, unpublished court of appeals opinion, 2015AP1799-Cr, case activity (including briefs)
This split decision clarifies important aspects of ineffective assistance of counsel law, sentencing law, and appellate procedure. In addition, Justice Abrahamson’s dissent includes a word of caution for lawyers representing clients who have experienced brain trauma that may affect their mental capacity.
SCOW: Circuit courts can’t waive the DNA surcharge for crimes committed after January 1, 2014
State v. Michael L. Cox, 2018 WI 67, 6/15/18, on certification from the court of appeals; case activity (including briefs)
For years the DNA surcharge statute said that a court “shall” impose a surcharge on certain felony sex offenses and “may” impose a surcharge on any other felony offense. See § 973.046 (1g) and (1r) (2011-12). That changed in 2013 Wis. Act 20, §§ 2353 and 2354, which amended the statute to say a court “shall” impose a surcharge for all criminal convictions, including misdemeanors, committed on or after January 1, 2014. A unanimous supreme court holds that in making this change the legislature intended to eliminate a circuit court’s discretion to waive the surcharge by requiring the surcharge to be imposed in every case.
Nothing to see here
State v. Steven T. Delap, 2018 WI 64, 6/6/18, affirming an unpublished court of appeals decision, 2016AP2196, case activity (including briefs)
Police had two warrants to arrest Delap. They went to what someone had told them was his address, and someone they thought was Delap ran from them toward the back door of the residence. They chased him, prevented him from closing the door, and arrested him.
SCOW overrules Elward and Radaj; mandatory DNA surcharge doesn’t violate ex post facto clause
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.
In Wisconsin, we can send people to prison for things they did when they were 5
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.
For IAC claims in multi-count cases, SCOW says courts may determine prejudice on a count-by-count basis
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.
SCOW: Lifetime GPS monitoring is not a punishment the judge must cover in the plea colloquy
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.
Daubert’s teeth still missing
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.