On Point: A. Review Grants

State v. Cesar Antonio Lira, 2019AO691-CR, petition for review granted 1/20/21; case activity

Issues presented (from the State’s PFR):

1. Under §973.155, a convicted offender is entitled to sentence credit for “all days spent in custody in connection with the course of conduct for which sentence was imposed.” And §973.15(5) provides that an offender lawfully made available to another jurisdiction is entitled to credit for custody time in that jurisdiction “under the terms of s. 973.155.”

The court of appeals awarded Lira over 11 years of credit for custody in Oklahoma under §973.15(5), despite the fact that the Oklahoma sentence was not “in connection with” the Wisconsin offenses for which he was sentenced. It relied on State v. Brown, 2006 WI App 41, 289 Wis. 2d 823, 711 N.W.2d 708, which holds that courts determining credit under section 973.15(5) may not consider “the terms of s. 973.155,” including whether the custody in the other jurisdiction is “in connection with” the Wisconsin offense.

State v. Octavia W. Dodson, 2018AP1476-CR, petition for review granted 1/20/21; case activity (including briefs)

Issue presented:

Did the sentencing court violate Dodson’s Second Amendment right to keep and bear arms by considering his status as a lawful gun owner an aggravating factor at sentencing?

State v. Brian v. Rotolo, 2019AP2061-CR, petition for review granted 12/28/20; case activity

Issue presented (adapted from the petition for review):

In State v. Lonkoski, 2013 WI 30, ¶6, 346 Wis. 2d 523, 828 N.W.2d 552, SCOW held that the test for Fifth Amendment Miranda custody is whether “a reasonable person would not feel free to terminate the interview and leave the scene.” Does this test for determining Miranda custody also apply when police legally detain a suspect under Terry?

State v. Anthony M. Schmidt, 2020AP616-CR, petition for bypass granted 12/28/20; case activity

1. Does Wis. Stat. §973.042 (the child pornography surcharge statute) permit the circuit court to impose a child pornography surcharge for an offense that is “read in” for sentencing purposes?
2. Is the child pornography surcharge a punishment that must be explained during a plea colloquy? If so, was Schmidt entitled to a hearing on his claim that the plea colloquy was deficient in this case?

Fond du Lac County v. S.N.W., 2019AP2073, petition for review granted 11/19/20; case activity

Issues presented:

1. Did the circuit court lack competency to adjudicate this Chapter 51 commitment proceeding due to the county’s violation of the rule requiring it to file psychiatric reports 48 hours before the final hearing?

2. If the circuit court retained competency, did it err in admitting a tardy report and the testimony of the report’s author?

State v. George Steven Burch, 2019AP404-CR, certification granted 11/18/20; case activity (including briefs)

Issues presented (from the certification):

Did police violate Burch’s Fourth Amendment rights by:

1. exceeding the scope of Burch’s consent to search his cell phone by downloading the phone’s entire contents, rather than only the text messages;
2. unlawfully retaining the entire cell phone download after it completed its initial investigation and closing the case without charging Burch; and
3. unlawfully conducting a second search of the cell phone download months after closing the initial investigation.

Eau Claire County DHS v. S.E., 2019AP894, review of a published opinion granted 10/21/20, case activity.

When the court orders a child in need of protection or services (“CHIPS”) placed outside the family home, a parent’s rights may be terminated if he or she fails to meet the conditions for the child’s return in the timeframe set out by statute. Wis. Stat. § 48.415(2)(a). In April 2018, the legislature shortened this timeframe. Under either version, the CHIPS order placing the child outside the home must include “notice” of “any grounds for termination of parental rights[.]” Wis. Stat. §§ 48.415(2)(a) and
48.356.

Issues for Review:

Whether as a matter of statutory construction the new, shorter timeframe begins with the initial CHIPS order, even if it predates the change in the statute and thus does not include notice of the shorter timeframe.

Whether starting the shorter timeframe with a CHIPS order that predates the statutory change violates a parent’s due process rights.

State v. Dawn M. Prado, 2016AP308, cross-petitions for review of a published court of appeals decision granted 10/21/20; case activity (including briefs and, now, PFRs!)

You’ve heard this one before. Here’s our post on the court of appeals decision, which struck down the unconscious-driver provisions of the implied-consent statute but nevertheless declined to suppress the blood draw results under the good-faith doctrine. Perhaps you imagined the matter resolved, particularly given that after several failures to decide the question, SCOW had begun declining the court of appeals’ certification requests on the topic. No such luck.

State v. Alan M. Johnson, 2018AP2318-CR, review of published opinion granted 9/16/20; case activity (including briefs)

Issues for review (from the State’s Petition)

1. Was Johnson entitled to a jury instruction for perfect self-defense based on his testimony concerning his motivation for trespassing with a loaded firearm in KM’s house, despite the fact that KM was unarmed, shot five times, and Johnson could not recall anything about the shooting other than that KM “lunged” at him?

2. Was Johnson entitled to submission of the lesser-included offense of second-degree reckless homicide under the above circumstances?

3. Did the circuit court erroneously exercise its discretion in excluding evidence of alleged child pornography Johnson found on KM’s computer before he killed KM?

State v. Mitchell L. Christen, review of a one-judge court of appeals decision granted 9/16/17, case activity (including brief)

Issue presented:

Wisconsin Statute § 941.20(1)(3) provides whomever goes armed with a firearm while under the influence of an intoxicant is guilty of a Class A misdemeanor. The consumption of alcohol may lead an individual to become under the influence of an intoxicant, but the consumption of alcohol is not prohibited. The question presented is: Does the consumption of a legal intoxicant void the Second Amendment’s guarantee of the right to carry a firearm for the purpose of self-defense?