On Point blog, page 60 of 104
Standards of Review: Administrative Body – Construction of Constitutional Provision
Racine Harley-Davidson, Inc. v. State of Wisconsin Division of Hearings and Appeals, 2006 WI 86
Issue/Holding:
¶14 By granting deference to agency interpretations, the court has not abdicated, and should not abdicate, its authority and responsibility to interpret statutes and decide questions of law. Some cases, however, mistakenly fail to state, before launching into a discussion of the levels of deference, that the interpretation and application of a statute is a question of law to be determined by a court.
Appellate Procedure – Harmless Error: Denial of Right to Counsel – TPR
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
For Shirley E.: Andrea Taylor Cornwall, SPD, Milwaukee Appellate
Issue/Holding:
¶63 Depriving a parent of the statutory right to counsel in a termination of parental rights proceeding deprives the parent of a basic protection without which, according to our legislature, a termination of a parental rights proceeding cannot reliably serve its function.
Review — Reconfinement Sentence (After Revocation of Extended Supervision) – Exercise of Discretion
State v. John C. Brown, 2006 WI 131, affirming 2006 WI App 44
For Brown: Randall E. Paulson, SPD, Milwaukee Appellate
Amicus: Robert R. Henak and Amelia L. Bizzaro; Walter J. Dickey & David E. Schultz
Issue/Holding:
¶22 We conclude that a reconfinement decision, like an initial sentencing decision, involves the circuit court’s discretion, and we review the circuit court’s decision to determine whether that discretion was erroneously exercised.
SVP – Post-Disposition — Failure to Obtain Residential Placement on Court Order for Supervised Release
State v. Shawn D. Schulpius, 2006 WI 1, affirming, 2004 WI App 39
For Schulpius: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding1: Failure to place Schulpius on court-ordered supervised release did not “shock the conscience,” hence did not violate substantive due process, where the failure occurred despite good-faith, substantial efforts to comply with the order, ¶31.
Issue/Holding2: Failure to place Schulpius on court-ordered supervised release violated procedural due process.
Sentencing – Review — Inaccurate Information — Test
State v. Larry A. Tiepelman, 2006 WI 66, reversing 2005 WI App 179
For Tiepelman: Suzanne L. Hagopian, SPD, Madison Appellate
Issue: Whether, on a claim that the sentence violated due process because based on inaccurate information, the defendant must show not only sentencing court reliance on the inaccurate information, but also prejudicial reliance.
Holding:
¶2 We hold that in a motion for resentencing based on a circuit court’s alleged reliance on inaccurate information,
Common Law Defenses – Collateral Attack on Order as Element of Pending Offense, Generally
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶42 Where a valid order or judgment is a necessary condition for one of the elements of a crime, a collateral attack upon the order or judgment can negate an element of the crime if the order or judgment is void. See State v.
Enhancer – Waiver of Objection to Sufficiency of Repeater Proof
State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision
For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue/Holding: Failure to object to the manner of proving a repeater allegation (via CCAP) did not constitute waiver of an objection that the proof was insufficient:
¶51 The State contends that we concluded in Saunders that an objection to the sufficiency of the evidence of habitual criminality must be made in the circuit court or it is waived.
Due Process – Right to Present Defense – Expert Testimony, Identification Procedure
State v. Forest S. Shomberg, 2006 WI 9, affirming unpublished decision
For Shomberg: Charles W. Giesen; Morris D. Berman
Issue/Holding:
¶27 In St. George, this court held that the circuit court’s exclusion of testimony of a defense expert about the victim’s recantation, and about interview techniques particular to child sexual assault cases, unconstitutionally deprived the defendant of his right to present a defense.
Costs for Standby Counsel
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶72 Wisconsin Stat. § 973.06 permits the court to impose a lengthy list of costs upon an unsuccessful defendant. At sentencing, the court may require a probationer to reimburse the county or the state, as applicable, “for any costs for legal representation . . . for the defense of the case.”
Stop – Basis – Automobile: Display of Temporary Plate
State v. Raymond Lord, Jr., 2006 WI 122, reversing unpublished opinion
For Lord: George A. Tauscheck
Issue: Whether the police may stop an automobile solely because it displays a temporary license plate.
Holding:
¶4 … Law enforcement officers cannot stop an automobile to determine whether it is properly registered unless the officers have reasonable suspicion or probable cause to believe that either the automobile is being driven contrary to the laws governing its operation or that any occupant is subject to seizure in connection with the violation of an applicable law.