On Point: '19-20

Waupaca County v. K.E.K., 2018AP1887, petition for review of an unpublished court of appeals decision granted 7/24/20; case activity

Issues presented:

1. Did the circuit court lose competency to conduct a recommitment hearing because the County did not file the evaluation of K.E.K. at least 21 days before the expiration of her commitment, as required by § 51.20(13)(g)2r.?
2. Is the recommitment standard in § 51.20(1)(am) facially unconstitutional under the 14th Amendment  because it violates the guarantees of substantive due process and equal protection of the law or abridges the privileges or immunities of citizens?
3. Is the recommitment standard in § 51.20(1)(am) unconstitutional as applied to K.E.K.?

State v. Mark D. Jensen, 2018AP1952, petition for review of a summary court of appeals order granted 6/16/20; affirmed 3/18/21; case activity

Usually we do to the issues presented first. Here, they’re pretty insubstantial, so let’s just say what’s going on: the supreme court has intervened to (potentially) save a manifestly unconstitutional (and you don’t have to take our word for it) homicide conviction and life sentence in a notorious case.

State v. Alfonzo C. Loayza, 2018AP2066-CR, petition for review of a per curiam opinion granted 6/16/20; case activity

Issue (from the State’s petition for review):

It is well established that a DOT record is competent proof of a defendant’s prior conviction and can therefore be used to enhance the defendant’s sentence. It is also  well established  that a defendant may challenge the existence of a  conviction listed on a DOT record. But currently, there is no accepted procedure for how a defendant should challenge the existence of a conviction listed in a DOT record and what burden he must satisfy to make a DOT record so unreliable that it no longer qualifies as competent proof of the conviction.

Do the lack of a judgment of conviction for a prior offense and other documents that “support the inference” that the conviction does not exist render a Wisconsin DOT driving record that lists the conviction so unreliable that it is no longer competent proof of the conviction?

State v. Angel Mercado, 2018AP2419-CR, petition for review of a published decision granted 5/19/20; reversed 1/20/21; case activity

Issues (from the State’s petition for review):

1.  Did the court of appeals contravene §901.03(1)(a) when it directly reviewed Mercado’s forfeited challenges to the admission of the victims’ forensic interview videos into evidence?

2.  Did the circuit court court properly admit the victims’ forensic interview videos into evidence at trial?

State v. George E. Savage, 2019AP90-Cr, petition for review of an unpublished option granted, 5/19/20, case activity

Issues (adapted from the State’s petition for review):

1.  Under Hill v. Lockhart, 474 U.S. 52 (1985), when a defendant claims that he received ineffective assistance of counsel in connection with a guilty plea, he must prove that but for his lawyer’s deficient performance  he would have proceeded to trial.  More recently, Lee v. United States, 137 S. Ct. 1958 (2017) held that a defendant can, in some circumstances, prove Strickland prejudice even without a reasonable probability of success at trial.  Given the facts of this case, did Savage prove that he was entitled to withdraw his guilty plea even though he couldn’t show a reasonable probability of success at trial?

2.  State v. Sholar, 2018 WI 53, 381 Wis. 2d 560, 912 N.W.2d 89 holds that a court cannot decide an ineffective assistance of counsel claim if a Machner hearing has not occurred. In Savage’s case, the circuit court did conduct a Machner hearing,  but the court of appeals reversed and remanded on both deficient performance and prejudice because the circuit court misapplied State v. Dinkins, 2012 WI 24, ¶ 5, 339 Wis. 2d 78, 810 N.W.2d 787. Should the court of appeals have affirmed under the rule that the court of appeals may sustain a circuit court decision if there are facts in the record to support it?

State v. Jamie Lane Stephenson, 2018AP2104, petition to review a published court of appeals decision granted 3/17/20; case activity

Issues:

1. To prove that a person meets the criteria for commitment under Chapter 980, must the state present expert opinion testimony that the person is “dangerous” as defined under ch. 980?
2. Should the standard of review of the sufficiency of the evidence of dangerousness in a Chapter 980 case be changed to require that a reviewing court conduct a de novo review of whether the evidence satisfies the legal standard of dangerousness?

State v. Brian Halverson, 2018AP858-CR, review of a published court of appeals opinion granted 3/17/20; affirmed 1/29/21; case activity (including briefs)

Issues:

Whether a person who is interrogated by police while incarcerated is “in custody” and entitled to a Miranda warning under either the federal or state constitution?

Whether, under the totality of the circumstances, Halverson, who was incarcerated in jail was “in custody” when police interrogated him?

State v. Leevan Roundtree, 2018AP594-CR, review of per curiam opinion granted, 1/14/20; case activity

Issues:

1. Section 941.29(2) prohibits any person convicted of a felony—even if it doesn’t involve physical violence–from possessing firearms the rest of his life. Is this statute unconstitutional as applied to a person convicted of failure to pay child support?

2. Does a guilty plea waive a claim that the statute of conviction is unconstitutional as applied?

State v. Dobbs, 2018AP319-CR, petition for review of a per curiam opinion granted 1/14/20; case activity (including briefs)

Issues (based on Dobbs’ petition for review and SCOW’s order granting review:

1. Did the trial court err in precluding the defense’s expert on false confessions from testifying where, consistent with State v. Smith, 2016 WI App 8, 366 Wis. 2d 613, 874 N.W.2d 610, his opinions were relevant to a material issue, but he would not be offering an opinion on the specific facts of the case?

2. Did the trial court err in allowing Mr. Dobbs’ statements to law enforcement into evidence despite the delay in reading him his Miranda rights and because his statements were involuntary due to his mental and physical conditions?

3. Whether the court of appeals’ decision that Dobbs was in custody for purposes of Miranda warnings is consistent with State v. Morgan, 2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23. If not, whether Morgan should be overruled?

State v. Ryan M. Muth, 2019AP875-CR, petition for review of per curiam opinion granted 12/11/19; case activity (including briefs)

Issues presented (based on petition and  cross-petition for review):

1. Wisconsin’s marital property statutes provide that income accrued during marriage belongs to both spouses. Wisconsin’s restitution statute permits crime victims to recover “income lost” from the “filing of charges or cooperating in the investigation and prosecution of the crime.” Where a crime causes a person’s death, can the deceased person’s adult children recover their spouse’s lost income  as restitution?

2. Where crime victims accept a civil settlement for lost wages and expenses, and the victims also seek restitution for lost wages and expenses, and where the defendant asserts “accord and sanctification,” does the defendant have to produce “extrinsic evidence” showing that the wages and expenses the victim received in the civil settlement are the same wages and expenses the victim seeks as criminal restitution?