On Point

State v. Shata, 2015 WI 74, 7/9/15, reversing an unpublished court of appeals decision, 2013AP1437-CR; majority opinion by Ziegler, dissenting opinion by Bradley (joined by Abrahamson); case activity (including briefs)

State v. Ortiz-Mondragon, 2015 WI 73, 7/9/15, affirming a published court of appeals decision, 2013AP2435-CR, majority opinion by Justice Ziegler, dissenting opinion by Bradley (joined by Abrahamson); case activity (including briefs)

In a pair of 5-2 decisions, the Wisconsin Supreme Court held that defense attorneys provided adequate advice about immigration consequences.  In each case, the defendant sought withdrawal of his guilty plea because he had not been properly advised regarding the mandatory adverse immigration consequences of conviction.

As described below, the cases presented different circumstances regarding the nature of the convictions and the advice given by the attorney.  Nonetheless, the following points seem clear regarding the court’s interpretation of Padilla v. Kentucky: 1) the court is narrowly interpreting the obligations of defense attorneys under Padilla; 2) the court does not believe that deportation is ever automatic or mandatory; and 3) if the information or advice provided was accurate, the court will find that the attorney’s performance was adequate, regardless of extent of legal research that the attorney conducted.

State v. Patrick Hogan, 2015 WI 76, 7/10/2015, affirming a court of appeals per curiam decision, 2013AP430-CR, majority opinion by Prosser; concurrence by Ziegler, dissent by Bradley (joined by Abrahamson); case activity (including briefs)

Sixteen seconds. It takes longer than that just to find your keys, get into your car, buckle up and start your engine. Keep that in mind as you read on. SCOW found that a traffic stop (due to a seatbelt violation) was unconstitutionally extended to perform field sobriety tests, but then upheld the subsequent vehicle search based on consent given 16 seconds after law enforcement told Hogan he was “free to leave.” SCOW saw no need to perform an attenuation analysis.

State v. Rogelio Guarnero, 2015 WI 72, 7/9/15, affirming a published court of appeals decision; majority by Roggensack; dissent by Bradley (joined by Abrahamson); case activity (including briefs)

In a decision that is short on analysis and long on Sixth Amendment problems, the supreme court holds that Guarnero’s prior conviction for conspiring to violate the Federal Racketeer Influenced and Corrupt Organizations (RICO) Act was a conviction for a crime “under a statute … relating to controlled substances,” and therefore qualified as a prior offense under the repeat drug offender enhancement provision of § 961.41(3g)(c), because the factual basis for the conviction involved controlled substance offenses.

State v. Maltese Lavele Williams, 2015 WI 75, 7/10/15; majority by Prosser: concurrence by Abrahamson; on certification from the court of appeals; case activity (including briefs)

All jury instruction errors are to be assessed for whether the error was harmless, the supreme court declares, including errors describing a theory of criminal culpability that was not presented to the jury or omitting a valid theory that was presented to the jury. The court therefore abrogates State v. Wulff, 207 Wis. 2d 143, 557 N.W.2d 813 (1997), which held that a jury instruction accurately setting out a legal basis for liability that does not fit evidence presented at trial should be assessed for whether the evidence was sufficient to support the basis for liability in the instruction.

State v. Kerby G. Denman, 2014AP2133, District 4, 7/9/15 (not recommended for publication); case activity (including briefs)

Denman is entitled to a hearing on his petition for discharge from his ch. 980 commitment because an expert changed her opinion about Denman’s risk to reoffend based on a new risk assessment scale that hadn’t been relied on by any of the experts at Denman’s previous discharge proceeding.

Adam R. Mayhugh v. State, 2015 WI 77, 7/10/15, affirming a court of appeals summary disposition, 2013AP20123; majority by Bradley; concurrence by Gableman; case activity (including briefs) While the SPD does not represent clients in lawsuits against the DOC, attorneys may get questions about this case. Staff at Redgranite Correctional ordered Mayhugh to sit in […]

State v. Rachael A. Dickenson, 2015AP277-CR, District 2, 7/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The police didn’t enter the curtilage of Dickenson’s home or commit a trespass by walking up her driveway toward the back of her house.

State v. Robert C. Blankenheim, 2015AP239-CR, District 2, 7/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Blankenheim’s challenges his OAR conviction by arguing that he was unlawfully stopped, that the evidence wasn’t sufficient to prove operation on a highway, and that the police officer wasn’t a credible witness. The court of appeals disagrees “on all points….” (¶1).

State v. Corey R. Kucharski, 2015 WI 64, reversing an unpublished court of appeals decision; majority opinion by Crooks; dissent by Bradley (joined by Abrahamson);  case activity (including briefs)

If you thought defending a discretionary reversal in SCOW was tough before, it just got tougher. Kucharski pled “no contest” to killing his parents but claimed he was not guilty by reason of mental illness due to schizophrenia. Voices told him to commit the murders. He had not been diagnosed with schizophrenia, but 3 doctors supported his NGI defense. The State presented no witnesses, yet the circuit court found that Kucharski failed his burden of proof. The court of appeals granted a new trial in the interests of justice. In a split decision, SCOW reversed and changed the “discretionary reversal” standard.

A new edition of SCOWstats is out here. This one shines a light on how comfortable the justices are joining each others’ concurrences and dissents. If you think of separate opinions as Facebook posts, SCOWstats shows whose opinions the justices “like”  the least and most.  🙂