On Point: A. Review Grants

State v. Lamont Donnell Sholar, 2016AP987, petition for review granted 10/17/17; case activity (including briefs)

Issues (composed by On Point)

1. When assessing the prejudice of defense counsel’s deficient performance in a multiple-count jury trial, may a court divide the prejudice analysis on a count-by-count basis, finding prejudice warranting relief on some counts from the single trial but not others?

2. If a party fails to file a petition for review following an unfavorable Court of Appeals ruling on a particular argument, may the party re-litigate the same question in a second appeal of the same case?

State v. Jamal L. Williams, 2017 WI App 46, cross petitions for review granted 10/10/17; case activity (including briefs)

Issues (composed by On Point)

1. Is the imposition of a single mandatory $250 DNA surcharge an ex post facto violation with respect to a defendant who committed his offense when the surcharge was discretionary and who previously had provided a DNA sample in another case?

2. Is Jamal Williams entitled to resentencing because the circuit court sentenced him based on an improper factor, namely, the fact that Williams refused to stipulate to restitution for which he was not legally responsible?

State v. Anthony R. Pico, 2015AP1799-CR, petition for review granted 10/10/17; case activity (including briefs)

Issues (composed by On Point):

1. Did the Court of Appeals apply the proper standard of review to the trial court’s findings of fact regarding trial counsel’s conduct and strategy?

2. Did trial counsel perform deficiently by failing to investigate Pico’s serious head injury, and did that deficient performance prejudice Pico in pretrial proceedings and at trial?

3. Did the sentencing court impermissibly burden Pico’s privilege against self-incrimination?

4. Did the Court of Appeals err in concluding that Pico waived issues not raised by cross-appeal?

5. Is it permissible for a postconviction court to admit and consider expert testimony by another criminal defense attorney regarding the conduct of trial counsel?

State v. Gerald Mitchell, 2015AP304-CR; certification granted 9/11/17; case activity (including briefs)

Issue:

Whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law, where no exigent circumstances exist or have been argued, violates the Fourth Amendment.

State v. David McAlister, Sr., 2014AP2561, petition granted 9/11/17; affirmed 4/18/18; case activity (including briefs)

Issues (copied from petition for review)

1. The central issue at trial was whether McAlister participated in the charged robberies. The state’s evidence on that point consisted entirely of the allegations of two confessed participants seeking to mitigate the consequences of their own misconduct. The jury knew that the state’s witnesses had a motive to falsely accuse McAlister but those witnesses denied under oath having done so. Under these circumstances, is newly discovered evidence from three separate witnesses swearing that the state’s witnesses admitted prior to trial that they intended to falsely accuse McAlister “cumulative” and “merely tend to impeach the credibility of witnesses” such that it could not support a newly discovered evidence claim?

2. Whether the allegations of McAlister’s §974.06 motion were sufficient to require a new trial and therefore an evidentiary hearing on his claim.

State v. Andre L. Scott, 2016AP2017-CR, bypass granted 9/12/17, case activity (including briefs)

Issues:

1. Whether, despite State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994), a circuit court may use §971.14(4)(b) to require a nondangerous defendant to be treated to competency against his will, and if so, whether §971.14(4)(b) is unconstitutional on its face because it does not comport with Sell v. United States, 539 U.S. 166 (2003).

2. Whether an order requiring an inmate to be involuntarily treated to competency is a nonfinal order that should be challenged by a Wis. Stat. §809.50 petition for interlocutory appeal or a final order of a special proceeding that is appealable as a matter of right via Wis. Stat. §808.03(1).

3. Whether the court of appeals exercises its discretion erroneously when it denies a motion for relief pending appeal without explaining its reasoning.

State v. Tydis Trinard Odom, 2015AP2525-CR, certification granted 9/12/17; case activity (including briefs). This is the second certification of this case; here’s the first.

Issue

In determining whether the imposition of multiple DNA surcharges constitutes “potential punishment” under WIS. STAT. § 971.08(1)(a) so that a court must advise a defendant about the surcharges before a valid plea may be taken, is the “intent-effects” test, as applied in State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758, and State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786, to ex post facto claims, the same analysis that was applied in State v. Bollig, 2000 WI 6, ¶16, 232 Wis. 2d 561, 605 N.W.2d 199, to a plea withdrawal claim?

If the analysis is the same, should Radaj be overruled in light of the supreme court’s recent decision in Scruggs?

We note that we previously certified the issue of whether multiple DNA surcharges constituted “potential punishment” under WIS. STAT. § 971.08(1)(a), such that a court’s failure to advise a defendant about them before taking his or her plea establishes a prima facie showing that the defendant’s plea was unknowing, involuntary, and unintelligent. The supreme court declined to accept certification.

We certify again because, as explained below, the supreme court’s recent decision in Scruggs now suggests that the ex post facto analysis of Radaj, holding that multiple DNA surcharges are “punishment,” was incorrect.

State v. Diamond J. Arberry, 2016AP866-CR, 6/16/17, granting a petition for review of a published court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. When a defendant is eligible for expungement under § 973.015 but expungement is not addressed the sentencing hearing, can the defendant raise the issue in a postconviction motion? If so, is a “new factor” motion the appropriate vehicle for bringing such a claim?

2. Did the circuit court err in its exercise of discretion when it denied Arberry expungement based on reasons that could apply in any case?

State v. Daniel H. Bartelt, 2015AP2506-CR, 6/15/17, granting review of a published court of appeals opinion; case activity (including briefs)

Issues:

1.  After confessing to an attempted homicide or other serious crimes, would a reasonable person feel free to terminate a police interview and leave an interrogation room, such that the person in not “in custody” for Miranda purposes?

2.  After confessing, did Bartelt make a clear and unequivocal request for counsel when he asked one of the detectives, “Should I or can I speak to a lawyer or anything?” the detective replied, Sure, yes, that is your option.” And Bartelt replied, “Okay, I think I’d prefer that.”

State v. Shaun M. Sanders, 2015AP2328-CR, granting review of a published court of appeals decision, 6/13/17, case activity (including briefs

Issue (copied from the petition for review):

Can a person be criminally responsible for acts he allegedly committed before the age of original juvenile court jurisdiction?