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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 approves “illegal alien” status as aggravating sentencing factor
State v. Leopoldo R. Salas Gayton, 2016 WI 58, 7/6/16, affirming an unpublished court of appeals opinion, 2014 WI App 120, 358 Wis. 2d 709, 856 N.W.2d 345; case activity (including briefs)
SCOW took this case to address “whether a sentencing court may rely on a defendant’s illegal immigrant status as a factor in fashioning a sentence.” See here. In a 6-0 decision, the answer, at least on the facts of this case, is that a Wisconsin court may sentence a defendant more harshly because he is an “illegal alien.” The concurrence by Justice A.W. Bradley provides guidance to lower courts and defense attorneys about how to handle immigration status at sentencing.
Traffic stop was not unlawfully extended, and defendant consented to search conducted during stop
State v. Lewis O. Floyd, Jr., 2016 WI App 64, petition for review granted 1/9/2017, affirmed, 2017 WI 78; case activity (including briefs)
Police found drugs on Floyd after they searched him during a traffic stop. Floyd claims the traffic stop was extended beyond what was necessary to issue the citations he was given and that he didn’t consent to the search. The court of appeals turns back both challenges.
State’s failure to respond to defense argument results in reversal of conviction
State v. Charles David Sislo, 2015AP73-CR, 7/6/16, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)
Wow! This “defense win” is gift wrapped for appellate lawyers. Sislo appealed the circuit court’s denial of his motion to suppress the fruits of his arrest, arguing that the police had no probable cause to arrest him even considering the collective knowledge doctrine. The State’s response brief apparently “mischaracterized” Sislo’s argument, and this did not sit well with the court of appeals:
Resuming questioning of suspect didn’t violate his invocation of right to remain silent
State v. Johnnie Mertice Wesley, 2015AP590-CR, District 1, 7/6/16 (not recommended for publication); case activity (including briefs)
Wesley asserted his right to remain silent during an initial interrogation, and the detectives stopped questioning him. Detectives approached him two more times to resume questioning, and during the third interrogation Wesley made incriminating statements. The court of appeals holds that the detectives didn’t violate Wesley’s invocation of the right to remain silent by resuming interrogation. The court also rejects Wesley’s claim that he invoked the right to remain silent again during the third interrogation.
Evidence sufficient to support TPR order
State v. J.M., 2016AP817 & 2016AP817, District 1, 7/6/16 (one-judge decision; ineligible for publication); case activity
The evidence introduced at the fact finding hearing was sufficient to establish both continuing CHIPS and failure to assume parental responsibility grounds, and the circuit court properly exercised its discretion in finding that termination was in the best interests of T.M.’s children.
Collateral attack on plea fails; no evidence of plea deal defendant claims induced him to plead
James R. Todd v. Kess Roberson, 7th Circuit Cout of Appeals Case No. 14-3430, 2016 WL 3568107, 7/1/16
Todd claims his trial lawyer was ineffective for inducing him to plead to a charge carrying a minimum of 6 years and a maximum of 60 years in exchange for the state capping its sentencing recommendation at 10 years when there was no such cap. His claim fails because the record shows he understood there was no 10-year cap.
Untimely habeas petition might be saved by equitable tolling
Anastazia Schmid v. Steven McCauley, 7th Circuit Court of Appeals No. 14-2974, 2016 WL 3190670, 6/8/16
Because the record discloses Schmid suffers from some sort of mental disability and may have been hindered by counsel’s failure, the district court acted too hastily in dismissing Schmid’s untimely habeas petition; instead it should have appointed counsel and, if necessary, held an evidentiary hearing to determine whether Schmid’s deadline was subject to equitable tolling.
Failure to investigate alibi witnesses might have been ineffective
Eric Blackmon v. Tarry Williams, 7th Circuit Court of Appeals No. 14-3059, 2016 WL 3007212, 5/24/16
Two eyewitnesses to the murder of Tony Cox were shown a photo array and live line-up, and both independently identified Eric Blackmon—a man they did not know—as one of two gunmen who shot and killed Cox. The judge at Blackmon’s bench trial relied heavily on the two eyewitness identifications. (Slip op. at 3-11). While Blackmon’s trial lawyer put on two alibi witnesses, Blackmon alleges he failed to interview and present six additional alibi witnesses. The Seventh Circuit holds this allegation entitles Blackmon to a hearing to take testimony from the missing alibi witnesses and trial counsel.
SCOW makes it easier for the state to satisfy the “inevitable discovery” exception to the exclusionary rule
State v. Mastella L. Jackson, 2016 WI 56, 7/1/16, affirming a published decision of the court of appeals, 2015 WI App 49, 363 Wis. 2d 553, 866 N.W.2d 768; case activity (including briefs)
Despite the “flagrant” and “reprehensible” violations of Jackson’s Fifth Amendment rights by police, the supreme court holds that physical evidence seized based in part on information obtained from those violations should not be suppressed because the evidence would have been inevitably discovered. In the course of this ruling, the court alters Wisconsin’s long-established inevitable discovery standard and refuses to rule out using the doctrine in cases where the police intentionally violate a suspect’s rights.
The most anticipated SCOW decision this term?
The countdown to SCOW’s final decision this term continues. As of today, there are 9 to go, with 3 scheduled to be released on Wednesday July 6th. One particular case is attracting a lot of national attention: State v. Loomis, which concerns a circuit court’s ability to rely on COMPAS assessments when imposing a sentence. In […]
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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.