On Point

United States v. Dennis Franklin and Shane Sahm, vacating panel decision, (884 F.3d 331 (2018)) granting rehearing, and certifying a question to the Wisconsin Supreme Court; question answered, 2019 WI 64

This doesn’t happen every day! The Seventh Circuit has issued an opinion certifying a criminal law question to the Wisconsin Supreme Court:

Whether the different location subsections of the Wisconsin burglary statute, Wis. Stat. § 943.10(1m)(a)–(f), identify alternative elements of burglary, one of which a jury must unanimously find beyond a reasonable doubt to convict, or whether they identify alternative means of committing burglary, for which a unanimous finding beyond a reasonable doubt is not necessary to convict?

The Wisconsin Supreme Court’s final decision is out, which means the SCOWstats fantasy league results are in. See how your favorite team performed here.

The ACLU just released a report called “Fixing Wisconsin Sheriff Policies on Immigration Enforcement.” Among other things, it found that 24 Wisconsin counties have policies that allow or encourage the detention of immigrants for being undocumented or entering the country legally and then overstaying a visa. Without a warrant, this violates the constitution. Another 29 counties have no policies at all. What’s your county’s policy? Click here for the press release and here for the report.

State v. Arthur Allen Freiboth, 2018 WI App 46; case activity (including briefs)

In light of the Wisconsin Supreme Court’s May 2018 decisions in State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, and State v. Williams, 2018 WI 59, 381 Wis. 2d 661, 912 N.W.2d 373, the court of appeals now holds:

SCOW recently rejected a challenge to Wisconsin’s statutory cap on noneconomic damages for victims of medical malpractice. See Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 2018 WI 78.  If you are challenging the constitutionality of  a Wisconsin statute, you may want to take a careful look at this decision.  The justices appear to have split over the proper standard for judging the constitutionality of a statute.

State v. Terrance Lavone Egerson, 2018 WI App 49; case activity (including briefs)

Egerson told the trial court that his lawyer was “totally deficient” and declared a “total breakdown in communication.” The trial court agreed to let Egerson have a new lawyer, but as the parties and the court discussed logistics, he said: “let me represent myself and have co-counsel.” When that was ignored, Egerson said: “let me represent myself and have no counsel.” The court of appeals holds that this was not clear and unequivocal request to go pro se. Thus, the trial court had no duty to conduct the colloquy required by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). If Egerson’s words don’t satisfy the test, what words would? Perhaps SCOW will tell us.

State v. Demario D. Fleming, 2017AP1851-CR, District 1, 7/17/18 (not recommended for publication); case activity (including briefs)

Applying its recent decision in State v. Piggue, 2016 WI App 13, 366 Wis. 2d 605, 875 N.W.2d 663, the court of appeals rejects Fleming’s request for sentence credit for time he spent in custody on charges that were dismissed, but not read in, as part of a plea agreement.

Click here to read an interesting new Wisconsin Law Review comment that highlights ambiguities in our bail jumping statute and, using CCAP data, that recent (erroneous) court interpretations of the statute have led to an increase in bail jumping charges and sentences that are disproportionate to the charges crime, which place defendants at a disadvantage […]

State v. Misty Dawn Donough, 2017AP2000-CR, 7/10/18, District 1 (1-judge opinion; ineligible for publication), case activity (including briefs)

Deputy Moldenhauer saw Donough’s car disabled on an interstate and stopped to help. Moldenhauer repeatedly interacted with Donough, told her to get into the car, put it in neutral, and steer as the car was pushed on to a side street. Then she approached Donough for her license and insurance and saw her glassy eyes and detected the odor of alcohol.

State v. Zachary S. Friedlander, 2017AP1337, petition granted 7/10/2018; review of an unpublished court of appeals decision; case activity (including briefs)

Issue (from petition for review):

When, as here, an offender is mistakenly released from prison or jail, is the offender “in custody” under § 973.155(1) and Magnuson such that sentence credit should be granted for this time spent at liberty?