On Point: A. Review Grants

Petition for review of State v. Jose Alberto Reyes Fuerte, 2016 WI App 78, granted 1/18/2017; case activity (including briefs)

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

Now that criminal defense attorneys are obligated to advise their clients about the immigration consequences of their pleas, Padilla v. Kentucky, 559 U.S. 356 (2010), should the Wisconsin Supreme Court overturn its decision in State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, and reinstate the harmless error rule to prohibit a defendant who was aware of the potential immigration consequences of his plea from being able to withdraw the plea just because the circuit court failed to give a statutory immigration warning that complied with Wis. Stat. § 971.08(1)(c)?

Review of a published court of appeals decision; case activity (including briefs)

Issues (from the petition for review and petition for cross-review)

 1.  Whether the offense under § 343.44(2)(ar)4. can be punished as either a misdemeanor or a felony in order to resolve ambiguity in the statutory language when the legislature’s intent was to create a penalty scheme with increasing penalties for additional elements; or whether, instead, the doctrine of implied repeal should be employed to correct the obvious drafting error that created the ambiguity as to whether the offense is a misdemeanor or a felony.

2.  Whether § 343.44(2)(ar)4., having been interpreted to give discretion to the prosecution to charge an offense as a misdemeanor or a felony, can be constitutionally applied.

3.  Whether the provision in § 343.44(2)(b) stating that the circuit court “shall” consider certain sentencing factors is mandatory or directory.

Review of a published court of appeals decision, 2016 WI App 64; case activity (including briefs)

Issues (from petition for review):

Whether an officer’s justification to search is objectively reasonable where the suspect is not observed doing or saying anything suspicious, but cooperating in circumstances that the officer believes are suspicious?

Whether counsel provided ineffective assistance by failing to present additional evidence to show Floyd did not provide valid consent to the search?

Review of an unpublished court of appeals opinion; case activity (including briefs); petition for review

Issues (composed by On Point):

1.  Whether a driver, who is a non-native speaker of English, consents to a blood draw where, in response to the officer’s question “will you consent” gives an unintelligible answer, then clearly asks “what kind of test?” and “don’t you need a warrant?” and where the driver does not otherwise “resist” or “fight” the blood draw?

2.  Whether a driver’s acquiescence to a blood draw is voluntary when it occurs after he asks the officer “don’t you need a warrant?” and the officer shakes his head “no.”

Review of a court of appeals summary disposition; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  Could the defendant be convicted of two counts of hit and run with death resulting for a single act of leaving the scene of an accident that caused two deaths?

(2) Is the defendant’s sentence unduly harsh?

Review of an unpublished per curiam court of appeals decision; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  Was Steinhardt’s right to be free from double jeopardy violated when she was convicted of both party to the crime of First Degree Child Sexual Assault in violation of § 948.02(1)(e) and Failure to Protect a Child from Sexual Assault in violation of § 948.02(3)?

(2)  Did Steinhardt forfeit her right to raise the double jeopardy issue by pleading no contest to the charges?

(3)  Did Steinhardt’s postconviction motion, which alleged trial counsel was ineffective for failing to advise her about the double jeopardy issue, sufficiently allege that she was prejudiced by trial counsel’s failure?

Review of an unpublished court of appeals decision; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  May a prosecutor argue that a defendant’s refusal to submit to a breathalyzer test shows consciousness of guilt?

(2)  When a circuit court denies a postconviction motion based on arguably inapplicable case law, must the defendant ask the circuit court to reconsider its ruling in order to preserve for appeal the claim that the case law doesn’t apply?

On review of a per curiam opinion; case activity (including briefs)

Issues:

1. Which statute governs the service of a subpoena in a criminal case: §885.03 which provides that a subpoena may be left at a witness’s abode or §805.07 and §801.11 which require reasonable diligence to personally serve a witness before leaving the subpoena at her abode?

2. Whether trial counsel was ineffective for failing to argue that he had properly served the witness with a subpoena per §885.03? If not, then whether trial counsel was ineffective for failing to attempt to serve the witness personally before leaving the subpoena at her abode as required by §801.11.

Review of a per curiam opinion; case activity (including briefs); petition for review

Issues (from Stietz’s petition):

1. On the facts of this case, did the court of appeals deny Stietz’s federal and state constitutional rights to present a complete defense of self-defense, and contradict controlling precedent of this Court in State v. Mendoza, 80 Wis. 2d 122, 258 N.W.2d 260 (1977), by weighing Stietz’s credibility and requiring more than “some evidence,” even if inconsistent, to support a self-defense instruction?

2. On the facts of this case, did the court of appeals deny Stietz’s federal and state constitutional rights to present a defense by forbidding argument that Stietz was defending himself against two men he reasonably believed were armed trespassers?

3. On the facts of this case the court of appeals contradict this Court’s controlling decision in State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998), by foreclosing self-defense against wardens who: (a) the accused did not know were law enforcement officers, on evidence the jury was entitled to credit; (b) were not even claiming to make an arrest, but only were trying to disarm a man without apparent right; and (c) were not acting peaceably in any event, but rather were trying violently to disarm a lawfully armed man?

On bypass;  case activity (including briefs)

Issue (derived from court of appeals’ briefs):

Whether the Crime Victims Rights Board’s power to remedy a violation of a victim’s right to the speedy disposition of a criminal case can be applied to judges without violating the separation of powers doctrine.