On Point blog, page 44 of 104
Plea-Withdrawal – Post-Sentencing – Prima Facie Showing: Plea Questionnaire Function
State v. Christopher S. Hoppe, 2009 WI 41, affirming 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: A court may incorporate a plea questionnaire form into the guilty plea colloquy, but only up to a point:
¶32 The Plea Questionnaire/Waiver of Rights Form provides a defendant and counsel the opportunity to review together a written statement of the information a defendant should know before entering a guilty plea.
Misconduct Evidence, § 904.04 – Particluar Examples: “Context” – Possession of Drugs and Guns, to Refute Self-Defense
State v. Tony Payano, 2009 WI 86, reversing 2008 WI App 74
For Payano: Patrick Cavanaugh Brennan
Issue: Payano was convicted of shooting at police officers who entered his apartment under a no-knock warrant; he claimed self-defense (i.e., defending himself against unknown armed intruders); over objection, the State presented an informant’s testimony that the day before he had been at Payano’s apartment and seen Payano with drugs and a handgun: the issue is whether this testimony was properly admitted to provide “context” for the event.
Reasonable Suspicion – Basis – OWI – Time of Day, Erratic Driving
State v. Michael L. Popke, 2009 WI 37, reversing unpublished opinion
For Popke: John Miller Carroll, Aaron W. Schenk
Issue / Holding:
¶26 In the case at hand, the officer had reasonable suspicion that the defendant was operating a motor vehicle while intoxicated. Similar to the specific and articulable facts observed by the officer in Post, the officer in this case made the following observations over the course of approximately one block at 1:30 a.m.: The defendant was driving with three-quarters of the vehicle left of the center of the road;
Statements – Voluntariness – Police Deception/Promises – Informing of Potential Benefits of Cooperation not Improper
State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell
Issue/Holding:
¶29 Berggren also argues that his statements were induced by promises of probation and treatment. This amounts to an argument that his statements were not voluntarily given. He contends that the detective questioning him conveyed: “the belief that simple possession of child pornography photos would result in a probation disposition”;
Sentence Credit – Concurrent Sentences: Each Must Be Analyzed Separately for “Connection,” Though Imposed at the Same Time
State v. Elandis D. Johnson, 2009 WI 57, affirming 2008 WI App 34
For Johnson: Meredith J. Ross, UW Law School
Issue/Holding:
¶76 We conclude that Wis. Stat. § 973.155 imposes no requirement that credit applied toward one sentence also be applied toward a second sentence if the basis for applying the same credit to both sentences is merely that the sentences are concurrent and are imposed at the same time.
Restitution – Time Limit: No Explicit Deadline, Court May Consider After Sentencing
State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate
Issue/Holding:
¶52 The State counters that there is no language in the statute that requires victim claims to be submitted before sentencing. The State also argues that where restitution was held open, there is no expectation of finality and thus no equitable grounds for denying the claims.
Appellate procedure – Harmless Error: Public Trial – Violation as Structural Error
State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser
Issue/Holding:
¶43 If a defendant’s right to a public trial is determined to have been violated, the defendant need not show prejudice; the doctrine of harmless error does not apply to structural errors. [15]
[15] See Neder v.
Defense of Self, § 939.48(1) – Violent Acts of Victim – Generally
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding:
¶21 It is well established that a defendant seeking to support a self-defense claim may attempt to “prov[e] prior specific instances of violence within [the defendant’s] knowledge at the time of the incident.” State v. Wenger, 225 Wis.
Enhancer – Proof: Trial (on Guilt) – “Must be withheld from jury’s knowledge”
State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding: Evidence related to a penalty enhancer (such as a prior conviction in support of habitual criminality) is relevant only to sentence and “must be withheld from the jury’s knowledge,” ¶19, quoting Mulkovich v. State, 73 Wis. 2d 464,
Enhancer – § 939.62(2m)(d), Persistent Offender – “Prior” Strike
State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers
Issue/Holding: The “3-strike” persistent repeater enhancement, § 939.62(2m)(d), requires that the two prior strikes occur before the current felony and the 1st strike’s conviction date precede the 2nd strike’s violation date. Although Long’s two prior strikes occurred before the current felony,