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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
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SCOW upholds child porn surcharge for read-ins in nigh-incomprehensible opinion
State v. Anthony M. Schmidt, 2021 WI 65, 6/18/21, on bypass from the court of appeals; case activity (including briefs)
“We also conclude that the child pornography surcharge applies to images of child pornography that form the basis of read-in charges of sexual exploitation of a child or possession of child pornography, so long as those images of child pornography are connected to and brought into relation with the convicted individual’s offense of sexual exploitation of a child or possession of child pornography.” (¶61). What does it mean for images to be “brought into relation with” an offense? What kind of inquiry is it? Factual? Legal? We don’t know, the partial dissent doesn’t know, and as it observes, the majority seems also not to know, as they refrain from addressing any facts but the ones before them. The most reliable SCOW imperative–upholding criminal sanctions–seems once again to have made the “law development” function an afterthought.
Order placing child outside parent’s home was supported by the evidence
Wood County DHS v. P.R., 2020AP947, 6/24/21, District 4 (one-judge decision; ineligible for publication); case activity
P.R. unsuccessfully challenges the sufficiency of the evidence for the CHIPS court’s decision to remove her daughter, K., from her home after K. alleged that P.R.’s spouse, M.R., sexually assaulted her.
SCOTUS addresses plain error challenges to federal felon-in-possession cases after Rehaif
Greer v. United States, USSC No. 19-8709, together with United States v. Gary, USSC No. 20-444, June 14. 2021; Scotusblog pages for Greer and Gary (including links to briefs and commentary)
These two federal felon-in-possession defendants were convicted before Rehaif v. United States, 588 U.S. ___ (2019), which held that, under 18 U.S.C. § 922(g), the government must prove that the defendant knew he was a felon at the time he possessed a firearm. Thus, they seek relief from their convictions under the onerous plain-error standard. The Court holds they have met their burden.
June 2021 publication list
On June 30, 2021, the court of appeals ordered the publication of the following criminal law related decision: State v. Alijouwon T. Watkins, 2021 WI App 37 (events that happen after trial can’t be basis for newly-discovered evidence claim)
SCOW holds dismissal of TPR doesn’t automatically preclude malicious prosecution action
Cheyne Monroe v. Chad Chase, 2021 WI 66, 6/22/21, on certification from the court of appeals and reversing a circuit court judgment; case activity (including briefs)
One of the elements of a claim for malicious prosecution is that the baseless prior action must have terminated in favor of the party asserting malicious prosecution. The supreme court holds this element may be met even when the party accused of malicious prosecution voluntarily dismissed the allegedly baseless proceeding before it was decided on the merits.
SCOW affirms new trial in unusual homicide case involving a self-defense claim
State v. Alan M. Johnson, 2021 WI 61, 6/16/21, affirming in part and reversing in part a published decision of the court of appeals; case activity (including briefs)
In a case presenting a highly unusual set of facts, the supreme court agrees with the court of appeals that Johnson is entitled to a new trial because the circuit court erred in refusing to instruct the jury on perfect self-defense. However, the supreme court reverses the court of appeals’ decision as to the admissibility of other-acts evidence relating to the victim.
SCOW to review sentencing decisions that consider defendant’s religion and impact of sentence on defendant’s religious community
State v. Westley D. Whitaker, 2020AP29-CR, petition for review of a published decision of the court of appeals granted 6/16/21; case activity (including briefs)
Issues Presented (from the PFR and supreme court order granting review)
- Does it violate the First and Fourteenth Amendments and Article I, Section 18 of the Wisconsin Constitution to consider a defendant’s religious identity and impose a sentence intended to deter crime solely within his religious community?
- If a sentencing court may consider a defendant’s religious association to deter other members of a religious community, does the “reliable nexus” test of State v. Fuerst, 181 Wis. 2d 903, 512 N.W.2d 243 (Ct. App. 1994), and State v. J.E.B., 161 Wis. 2d 655, 469 N.W.2d 192 (Ct. App. 1991), require congruity between the offense and the activity protected by the First Amendment?
- Does the sentencing factor/objective of “protection of the public” permit the sentencing court to increase the sentence imposed on the defendant to send a message to an identified set of third parties that they should alter their behavior in the future, apart from generally being deterred from committing offenses like those committed by the defendant? (Added by the supreme court.)
SCOW will decide whether NGI commitments can be consecutive to each other
State v. Christopher W. Yakich, 2019AP1832-CR & 2019AP1833-CR, petition for review of an unpublished decision of the court of appeals granted 6/16/21; case activity (including briefs)
Issue Presented (from the PFR):
When a defendant has been found not guilty by reason of mental disease or defect in two separate cases and is subject to two separate commitment orders, does the circuit court have authority to run the terms of commitment consecutive to one another?
COA reverses ch. 51 recommitment of person under ch. 55 protective placement
Outagamie County v. X.Z.B., 2020AP2058, 6/22/2121, District 3, (1 judge opinion, ineligible for publication); case activity
This case involves the recommitment of a protectively placed person based on §51.20(1)(a)2.c., the 3rd standard of dangerousness. The court of appeals reversed the circuit courts’ recommitment order for insufficient evidence. And, for the second time in one week, it held that when circuit courts fail to make the requisite factual findings for a commitment that has expired, the remedy is reversal not remand for further fact-finding.
COA affirms waiver of juvenile into adult court
State v. T.G., 2021AP351, 6/23/21, District 2 (1-judge opinion, ineligible for publication); case activity
The State filed a delinquency petition against T.G., then 15, for stealing a car and causing an accident that left two passengers seriously injured. The State also petitioned for waiver of jurisdiction. Reviewing the petition de novo, the court of appeals held that Count 1 had “prosecutive merit.” Further, the circuit court did not erroneously exercise its discretion in waiving T.G. into adult court.
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.