On Point

On July 26, 2023, the court of appeals ordered publication of two criminal law related decision:

State v. Cedric Tung, 2023 WI App 33 (rejecting McCoy v. Louisiana and United States v. Cronic based IAC claims)

State v. Conrad M. Mader, 2023 WI App 35 (testimony that 99% of sexual assault reports are true improperly vouched for complainant’s credibility at trial)

State v. Alvin James Jemison, Jr., 2021AP2207-CR, 7/18/23, District 1 (not recommended for publication); case activity (including briefs)

After a jury trial, Jemison was convicted of second-degree sexual assault of an unconscious person (Teresa) as a repeater – serious sex crime and sentenced to life in prison without the possibility of release to extended supervision. See Wis. Stat. § 939.618(2)(b). After the circuit court denied his postconviction motion without a Machner hearing, Jemison raised three claims on appeal: (1) the evidence was insufficient to support the completed sexual intercourse charge, (2) the court erred in its admission of other acts evidence, and (3) the court erroneously denied his claims without an evidentiary hearing. The court of appeals rejects each of Jemison’s claims and affirms.

Jones v. Hendrix, 143 S.Ct. 1857, 599 U.S. __ (June 22, 2023); Scotusblog page (containing links to briefs and commentary)

The Court, in a 6-3 opinion authored by Justice Thomas, holds that the savings clause in 28 U.S.C.  2255(e) bars a prisoner from using an intervening change in the interpretation of a federal criminal statute to circumvent AEDPA’s restrictions on successive Section 2255 motions by filing a habeas petition under Section 2241.

State v. Nicholas Anthony Stilwell, 2022AP1839, 7/20/23, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

This case has facts remarkably like those of State v. Cundy, a recommended-for-publication case the court of appeals decided the week before. Police received a report of a hit-and-run of a parked vehicle, and learned the truck that did the hitting and running was registered to Stilwell. They went to Stilwell’s apartment and found the truck parked nearby. They buzzed Stilwell and he answered the door. They eventually entered the apartment and determined, including by the use of a PBT, that Stilwell was intoxicated, though he denied having driven his truck. They cuffed him, told him he was being “detained,” and took him to the crash scene, where after about 30 minutes they secured other evidence that Stilwell had driven his truck; they thus arrested him.

State v. Gregory L. Cundy, 2023 WI App 41, District 4; case activity (including briefs)

A person called police and said they’d seen a particular vehicle back into a parked car at idle speed and then drive off. About 40 minutes later, an officer arrived at Cundy’s house, knowing that the suspect vehicle was registered to Cundy and finding it in the driveway. The officer knocked on the front door and eventually spoke with Cundy, who remained inside the threshold. At some point the officer declined to let Cundy end the conversation, and a bit later he ordered Cundy out, drove him in his squad to the accident scene, and had the witness identify him. The officer then returned Cundy to his home, where after some further discussion, he was arrested.

State v. William J. Buffo, 2022AP1803-4-CR, District IV, 7/13/23, 1-judge decision ineligible for publication; case activity (briefs available)

In another messy pro se appeal, COA overlooks the State’s failure to file a response brief and affirms the circuit court’s “evidently correct” decision.

Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023).

In a case highlighting the changed legal landscape for firearm regulation, an en banc panel of the Third Circuit Court of Appeals concludes that the federal government cannot ban a nonviolent felon from lawfully possessing a firearm.

State v. Jonathon S. Geiger, 2022AP1270-CR, District III, 7/11/23, not recommended for publication; case activity (briefs available)

Geiger argues the circuit court erroneously ordered him to pay extradition costs in connection with a sentencing after revocation hearing. COA rejects his statutory construction arguments and affirms.

State v. M.H., 2023AP732, District I, 7/11/23, 1-judge decision ineligible for publication; case activity (briefs not available)

M.H. raises two challenges to a circuit court order terminating her parental rights. Under an exceedingly deferential standard of review, both claims fail.

Waukesha County v. M.A.C., 2023AP533, District II, 7/28/23, petition for review granted 12/12/23; reversed 7/5/24; 1-judge decision ineligible for publication; case activity (briefs not available)

In a Chapter 51 case with troubling due process implications, COA is compelled to affirm by virtue of what it believes to be binding precedent.