On Point: A. Review Grants

State v. Shannon Olance Hendricks, 2015AP2429-CR, petition for review granted 5/15/17; review of an unpublished court of appeals decision; case activity (including briefs)

Issue (composed by On Point)

Do Wisconsin Statute § 971.08(1) and State v. Bangert require that a defendant entering a guilty plea to a crime with alternative modes of commission understand what the state needs to prove to meet its burden of proof on the mode (or modes) of commission the state has alleged?

Whether the subject of a §51.20(1)(a) extension of involuntary commitment and medication order has a claim for ineffective assistance of trial counsel where his lawyer fails to object to, prevent the admission of, or request a curative instruction to address, evidence of his prisoner status during his jury trial?

Whether the subject of a §51.20(1)(a) extension of involuntary commitment and medication order is entitled to a new trial in the interests of justice where the jury repeatedly sees and hears evidence of his prisoner status?

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

Issues (composed by On Point based on the petition for review and the state’s response to petition for review)

Is the “greater latitude” rule created by case law regarding admission of other acts evidence in child sex cases codified by § 904.04(2)(b)1., which applies to admission of other acts evidence in cases involving an array of crimes in addition to child sex offenses?

Is evidence of a defendant’s criminal acts committed against a person other than the victim admissible under § 904.04(2)(b)1. to show a generalized motive or purpose by a defendant to “control” a person with whom he is in a relationship?

Review of an unpublished court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. Whether the prosecutor’s closing argument impermissibly shifted the burden of proof by telling the jury that in order to acquit the defendant they would have to believe the complaining witnesses were lying, that there would have to be evidence of a reason for them to lie, and that the defendant had presented no reason to believe they were lying.
2. Whether the defendant was deprived of the right to effective assistance of counsel because trial counsel did not object to the jury being given unredacted exhibits containing inadmissible information that one complainant had not had sexual intercourse before the assault alleged in this case.

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

Issues (composed by On Point)

1. Was trial counsel ineffective for failing to move to dismiss on First Amendment free speech grounds a disorderly charge that was based on Breitzman’s use of foul language toward her son inside their home?
2. Did the court of appeals misapply the standards for reviewing ineffective assistance of counsel claims by deferring to the legal conclusions in the circuit court’s postconviction ruling?

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?