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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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Record didn’t support order to install ignition interlock on spouse’s car
State v. Marguerite Alpers, 2015AP1784-CR, 1/12/16, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court erroneously exercised its discretion in ordering Alpers to install an ignition interlock device “on [her] husband’s car” as a condition of probation in her OWI cases because the record didn’t establish the condition was a reasonable and appropriate means of advancing the goals of rehabilitation and public protection, State v. Miller, 2005 WI App 114, 11, 283 Wis. 2d 465, 701 N.W.2d 47.
Counsel at TPR trial wasn’t ineffective
Barron County DHHS v. J.H., 2015AP1529, District 3, 1/13/16 (one-judge decision; ineligible for publication); case activity
J.H.’s claims that her trial counsel was ineffective are rejected because trial counsel’s actions were either not deficient or not prejudicial.
One conviction doesn’t constitute a “pattern” of child abuse
K.C. v. B.S.-S., 2015AP1702, District 2, 1/13/16 (one-judge decision; ineligible for publication); case activity
B.S.-S.’s single conviction for intentionally causing harm to a child in violation of § 948.03(2)(b) does not demonstrate “a pattern of physically … abusive behavior” under § 48.415(5), so the circuit court erred in terminating B.S.-S.’s parental rights based on that conviction.
Defendant’s docs didn’t disprove out-of-state OWI prior
State v. Joseph C. Risse, 2015AP586, District 3, 1/12/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Risse pled to an OWI, but was it his first or second? The state, armed with a Wisconsin Certified Driving Record, says he had a 2008 chemical test refusal in Connecticut. Risse, bearing a collection of documents from Connecticut and elsewhere, submits that they prevent the state from showing the prior beyond a reasonable doubt.
SCOTUS: Jury, not judge, must decide whether to impose death penalty
Hurst v. Florida, USSC No. 14-7505, 2016 WL 112683 (January 12, 2016); reversing and remanding Hurst v. State, 147 So.3d 435 (Fla. 2014); Scotusblog page (includes links to briefs and commentary)
In Florida the jury makes a recommendation as to whether to impose the death penalty, but the judge then holds a separate sentencing hearing and decides whether there are sufficient aggravating circumstances to justify the death penalty. This sentencing scheme is unconstitutional because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.” (Slip op. at 1).
SCOTUS: Federal PLRA requires fee recoupment for all pending cases, not just one at a time
Bruce v. Samuels, USSC No. 14-844, 2016 WL 112684 (January 12, 2016), affirming Pinson v. Samuels, 761 F.3d 1 (D.C. Cir. 2014); Scotusblog page (includes links to briefs and commentary)
Under 28 U.S.C. § 1915(b)(2) of the federal Prisoner Litigation Reform Act, a prisoner proceeding in forma pauperis must pay 20% of his or her existing income toward the filing fee of a case he or she files until the fee is paid. The federal circuit courts were split when it came to applying this requirement to prisoners who owed fees for more than one case. Some treated the 20% as a cap, so that the 20% would be taken out and applied to one case at a time till each fee was paid. Others assessed 20% per case, so that an inmate with, for example, three filing fees to pay would have 60% of his or her income taken. The Supreme Court unanimously adopts the second approach.
A “scent of lawlessness” in the Wisconsin Supreme Court?
On January 11th, SCOW granted petitions for review in 3 more cases: State v. Finley, 2014AP2488-CR, Wisconsin Carry, Inc. City of Madison, 2015AP146, and Regency West Apartments LLC v. City of Racine, 2014AP2947. What all 3 grant orders have in common is a harsh, 18-paragraph concurrence/dissent by Justice Abrahamson. She writes: “The efforts of one member of the court to unilaterally issue the grant orders threatened to contravene the court’s internal procedures and raises the scent of lawlessness in this court.” ¶1 (emphasis supplied). See the the grant orders for yourselves.
State v. Timonty L. Finley, Jr., 2014A2488-CR, petition for review granted 1/11/16
Review of a published court of appeals decision; case activity (including briefs)
Issue (from the State’s petition for review)
When a defendant who pleads guilty or no contest is misinformed that the maximum penalty that could be imposed is lower than the maximum actually allowed by law, and the sentence imposed is more than the defendant was told he could get, is the defendant entitled to withdraw his plea, or may the defect be remedied instead by reducing the sentence to the maximum the defendant was informed he could receive?
Wisconsin Carry, Inc. v. City of Madison, 2015AP146, petition for review granted 1/11/16
Review of a published court of appeals decision; case activity (including briefs)
Issue (composed by On Point)
Does the state statute preempting certain local firearm regulations, § 66.0409(2), apply to the Madison Transit and Parking Commission’s rule prohibiting weapons on city buses?
Welch v. United States, USSC No. 15-6418, cert. granted 1/8/16
I. Whether the District Court was in error when it denied relief on Petitioner’s §2255 motion to vacate, which alleged that a prior Florida conviction for “sudden snatching,” did not qualify for ACCA enhancement pursuant to 18 U.S.C. §924(e).
II. Whether Johnson v. United States, 135 S. Ct. 2551 (2015), announced a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review. Furthermore, Petitioner asks this Court to resolve the Circuit split which has developed on the question of Johnson retroactivity in the Seventh and the Eleventh Circuit Courts of Appeals.
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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.