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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.
Restitution order upheld
State v. Jason Napiwocki, 2016AP1264-CR, 5/4/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court didn’t erroneously exercise its discretion when it issued a final restitution order that adopted the findings of fact and conclusions of law of the court commissioner who conducted the restitution hearing.
Insufficient allegation of prejudice dooms plea withdrawal claim
State v. Eugene B. Santiago, 2016AP1267, District 2, 5/3/17 (not recommended for publication); case activity (including state’s brief)
Santiago’s trial lawyer missed a charging error that led to an overstatement of the penalties Santiago faced; this failure doesn’t allow Santiago to withdraw his plea, however, because he fails to sufficiently allege that he would not have entered a plea if his lawyer had caught the mistake.
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Court of appeals affirms TPR of dad who moved out of Wisconsin
State v. J.L.C., 2017AP197, 5/2/17, District 1 (1-judge opinion, ineligible for publication); case activity
J.L.C. argued that the circuit court erroneously terminated his parental rights to his son, K.C., because J.L.C. moved to Arizona, not because J.L.C. failed to provide a safe environment.
Federal judge voids Wisconsin law authorizing detention of pregnant women suspected of drug, alcohol abuse
Tamara M. Loertscher v. Eloise Anderson, et al., No. 14-cv-870-jdp (W.D. Wis. April 28, 2017)
Under § 48.193, which was created by 1997 Wisconsin Act 292, a juvenile court may treat an unborn child of any gestational age as a child in need of protection or services if the “expectant mother’s habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, [poses] a substantial risk” of harm to the unborn child. A federal judge has ruled the statute is void for vagueness.
Jeremy Perri Guest Posts: SCOW holds warnings not required before finding defendant has forfeited right to counsel
State v. Jack M. Suriano, 2017 WI 42, affirming an unpublished court of appeals opinion, 2015AP959-CR; case activity (including posts)
In Wisconsin, a defendant can lose his or her right to counsel in two ways: waiver and forfeiture. Waiver is voluntary and requires a colloquy with the defendant. Forfeiture does not.
Three different attorneys accepted State Public Defender (SPD) appointments to represent Jack Suriano. Each, in quick succession, withdrew from representation. After granting the third attorney’s motion to withdraw, the court found that Suriano had forfeited his right to counsel.
Chief Justice Roberts comments on courts’ use of artificial intelligence to decide cases
State v. Loomis has made the NYTimes again. See today’s article by Adam Liptak: Sent to Prison by Software’s Secret Algorithms.
SCOW: 1 car crash killing 2 victims yields 2 counts of “hit and run” in violation of sec. 346.67(1)
State v. Sambath Pal, 2017 WI 44, 4/28/17, affirming a court of appeals summary disposition, 2015AP1782-CR; case activity (including briefs)
Driver crashes into group of motorcyclists, kills one, mortally injures a second, flees the scene, and eventually pleads guilty to 2 counts of hit and run resulting in death contrary to §346.67(1). He’s sentenced to 2 consecutive terms of 10 years IC and 10 years ES. Questions Presented: Did driver commit 1 offense or 2? And is his sentence unduly harsh?
Hearing required on whether trial counsel was deficient for failing to call witness
State v. George D. Taylor, 2015AP1325-CR, 4/27/17, District 1/4 (not recommended for publication); case activity (including briefs)
Taylor raises a host of challenges to his felony murder conviction. The court of appeals rejects all of them except one: an ineffective assistance of counsel claim, which the court orders must be assessed at a Machner hearing.
Abrahamson criticizes Wisconsin Supreme Court’s “untoward dismissal” of fully briefed and argued case, offers advice on preserving issues
Maya Elaine Smith v. Jeff Anderson, 2017 WI 43, dismissing a petition for review of 366 Wis. 2d 808, 874 N.W.2d 347 (Ct. App. 2016)(unpublished); case activity (including briefs)
Recently, SCOW has marched ahead and decided issues that the parties did not properly preserve or brief–to the detriment of indigent defendants. Recall what happened a few weeks ago in State v. Denny and earlier in State v. Sulla and State v. Smith. But in this case, after briefing and argument by the parties and an amicus curiae, a 3-justice majority (Ziegler and RG Bradley didn’t participate) showed remarkable restraint. It issued a per curiam opinion dismissing a petition for review as improvidently granted because nobody preserved an issue the court of appeals declined to decide. The upshot? It appears that SCOW has rescued West Bend Mutual Insurance Company from an appellate blunder and possible defeat. The blunder presents a teachable moment for appellate lawyers trying to preserve issues for supreme court review.
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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.