On Point: A. Review Grants

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

Issue (from the State’s petition for review)

When a defendant who pleads guilty or no contest is misinformed that the maximum penalty that could be imposed is lower than the maximum actually allowed by law, and the sentence imposed is more than the defendant was told he could get, is the defendant entitled to withdraw his plea, or may the defect be remedied instead by reducing the sentence to the maximum the defendant was informed he could receive?

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

Issue (composed by On Point)

Does the state statute preempting certain local firearm regulations, § 66.0409(2), apply to the Madison Transit and Parking Commission’s rule prohibiting weapons on city buses?

Review of a court of appeals summary disposition, case activity (including briefs)

Issues (from the DOJ’s PFR here, Democratic Party’s response here):

1.  The public records law contemplates that some records should not be disclosed because it would be contrary to the public interest, and courts recognize the public importance of protecting crime victims and law enforcement techniques. Here, DOJ determined that releasing videos from prosecutors’ training seminars would not be in the public interest because the videos contained discussions of crime victims and law enforcement strategy. Was DOJ’s rationale sufficient to overcome the presumption of disclosure?

On a bypass petition; case activity (including briefs)

Issues (from the appellant’s brief):

Does a circuit court lack subject matter jurisdiction to enter an OWI 1st offense civil judgment if a defendant has a prior unknown out-of-state OWI conviction?

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

In this case the supreme court will address an important issue about the offense of using a computer to facilitate a child sex crime, § 948.075(1r). The court of appeals granted McKellips a new trial on a charge under that statute, holding the jury was erroneously instructed to decide whether McKellips’s cell phone constituted a “computerized communication system” when it should have been instructed to decide whether McKellips’s uses of the phone constituted communication via a “computerized communication system.” The supreme court might also address another issue that has implications beyond § 948.075: Namely, whether instructional error that isn’t objected to at trial can be a basis for a new trial in the interest of justice.

Seifert v. Balink, 2015 WI App 59, petition for review granted 11/4/15; affirmed, 2017 WI 2; case activity (including briefs)

While this case involves a medical malpractice claim rather than an issue of criminal law, On Point thought it worth noting because it will be the first time the Wisconsin Supreme Court will address the admissibility of expert opinion evidence since § 907.02(1) was revamped to adopt Federal Rule of Evidence 702 and, by extension, the interpretation of FRE 702 by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

On review of a court of appeals certification; case activity

Issue (from certification)

Does a defendant’s right to due process prohibit a circuit court from relying on COMPAS assessments when imposing sentence, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity, or because COMPAS assessments take gender into account.

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

Issue (composed by the order granting review)

Whether a sentencing court may rely on a defendant’s illegal immigrant status as a factor in fashioning a sentence; and if such reliance is improper, whether it is structural error or subject to harmless error analysis.

Review of a published court of appeals decision; case activity;  petition for review; response and cross petition; order granting review

Issues (from Singh’s petition and the State’s cross petition)

Whether the retroactive application of provisions of 2011 Wisconsin Act 38, which repealed provisions of 2009 Wisconsin Act 28 that gave inmates the opportunity to apply for early release, increases an offender’s penalty and therefore violates the ex post facto clauses of the federal and state constitutions.

If retroactive application of Act 38 in general violated the ex post facto clauses, did Act 38’s change in the procedure for granting release under one of the early release provisions (positive adjustment time, or PAT) violate the ex post facto clauses.

Review of a published court of appeals decision; case activity

Issue (composed by On Point)

Is an elected district attorney a public “employee” who may enjoin the release of records under the open records law because they relate to employee discipline?