On Point

State v. Cheneye Leshia Edwards, 2017AP633-CR, 4/17/18, District 1 (1-judge opinion, ineligible for publication), case activity (including briefs).

Edwards entered a plea to disorderly conduct and asked the sentencing court to order expungement in the event he successfully completed probation.  The court denied the request without explaining why. So Edwards filed a postconviction motion arguing that (1) the sentencing court erroneously exercised its discretion, and (2) the postconviction court had the inherent authority to grant expunction.  The court of appeals reversed on (1) and declined to address (2).

Winnebago County v. J.M., 4/18/18, 2018 WI 37, affirming an unpublished court of appeals opinion, 2016AP619, case activity.

This opinion will interest lawyers who handle Chapter 51 cases and appellate lawyers of all stripes. It establishes that persons undergoing Chapter 51 mental commitments are entitled  to the effective assistance of counsel and formally adopts the Strickland test for ineffective assistance. It further holds that, due to the overwhelming evidence of dangerousness in this case, J.M. was not prejudiced when his counsel failed to object to him appearing before the jury wearing prison clothes accompanied by uniformed guards–even as he testified. Of particular interest to appellate lawyers, SCOW granted a motion to strike significant parts of Winnebago County’s oral argument because its lawyer asserted facts outside the appellate record.

For the next couple of weeks, On Point will limit posting to SCOTUS opinions, SCOW opinions, and just a few court of appeals opinions. Also, we will not post as promptly as we normally do.  We will return to full speed soon!

State v. Devin T. White, 2016AP119-CR, 4/10/18, District 1, (not recommended for publication); case activity (including briefs)

White was convicted of 1st-degree reckless homicide. He argued that the trial court misapplied the law governing self-defense and improperly instructed the jury. The court of appeals repeatedly struggled to determine the thrust of his argument, but it appeared to be this:

¶15 Under White’s interpretation of the law, the State must prove beyond a reasonable doubt that he did not have these actual beliefs; therefore, the trial court erred in failing to instruct the jury of the State’s burden and that White could not be found guilty if the State did not prove he did not have these actual beliefs. Under White’s interpretation of the law, his actual belief controls, not whether his belief was reasonable.

The court of appeals also admonished White’s appellate counsel.

State v. Joshua H. Quisling, 2017AP1658-CR, District 4, 4/12/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Quisling was “subject to” a court order to install an ignition interlock device (IID) under § 343.301 (2013-14) even though the requirement for actually installing the device was contingent on DOT issuing him a driver’s license, and that hadn’t happened yet.

State v. Angela C. Nellen, 2017AP257-CR, District 4, 4/18/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Completely overlooking the victim’s own restitution hearing testimony that she was guessing about the number and value of the coins they believe were stolen by Nellen, the court of appeals blames Nellen for “fail[ing] to support [her] argument” that the record was insufficient to support the circuit court’s $90,000 restitution order for 30 coins at $3,000 each.

Time to challenge the previously reasonable assumption that “public gun possession” equals “criminal activity.” So argues this forthcoming law review article posted at SSRN. Here’s the abstract:

State v. Brian Grandberry, 2018 WI 29, affirming an unpublished court of appeals decision, 2016AP173; case activity (including briefs)

Here’s the upshot: the majority opinion here means that, if you don’t have a concealed carry permit, you can’t have a handgun “concealed” in your car, unless it’s out of your reach. How will you know if it’s out of your reach? Simple: you’ll consider the location of the gun and yourself, the size of your vehicle, and your ability to reach the gun, and then you’ll “find guidance in [SCOW] precedent and common sense.” (¶31). While you’re considering all these things you should maybe also consider how, say, a police officer might consider them. Or a prosecutor. Or a jury. Because if they reach a different conclusion, well, that’s gonna be a problem.

State v. Gerrod R. Bell, 2018 WI 28, 4/10/18, affirming an unpublished court of appeals opinion, 2015AP2667-2668-CR; case activity (including links)

A defendant is presumed innocent until the State proves him guilty beyond a reasonable doubt. That’s what the Constitution says. Yet, in this child sexual assault case, the State cleverly told jurors that they could not acquit the defendant unless they believed his accusers had lied about the alleged assaults and unless they had evidence of the victims’ motive for lying.  Bell argued that this prosecution strategy impermissibly shifted the burden of proof to him. In a 3-1-1 opinion, SCOW approved the strategy and ruled against him.

State v. T.G., Sr., 2017AP1715, District 1, 4/10/18 (one-judge decision; ineligible for publication); case activity

T.G. sought to withdraw his no contest plea to the grounds alleged in a TPR petition. He argued that his mental health issues prevented him from understanding the TPR proceedings and that his lawyer failed to fully explain that a no contest plea waived the right to a jury trial. The court of appeals holds that the record of the no contest plea demonstrates T.G. understood what he was doing and the consequences of his plea.