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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.
SCOW majority overrules Shiffra/Green
State & T.A.J. v. Alan S. Johnson, 2023 WI 39, 05/16/2023, reversing a published court of appeals decision, case activity (including briefs)
As the dissent aptly describes it, “[t]his case has traveled a long and winding road to this point, and Johnson’s trial has not yet begun.” (Opinion, ¶110, Bradley, A.W., dissenting). As discussed in On Point’s prior posts, here and here, this case was originally about whether “Marsy’s Law” gave crime victims standing to intervene in Shiffra–Green litigation. After the court appeals held that it did and after Johnson petitioned for review, the supreme court took up the case. Then, in a footnote in its response brief, the state asserted that, “Shiffra is incorrect to the extent that it holds that Ritchie applies to records outside the State’s possession.” (Op., ¶110, Bradley, A.W., dissenting). Thereafter, the supreme court ordered supplemental briefing on a new question: “Should the court overrule State v. Shiffra…?” (Op., ¶4). And, now the majority has done just that.
Essential reading: Dallet’s concurrence in the Marsy’s law case
Wisconsin Justice Initiative, Inc. v. Wisconsin Elections Commission, 2023 WI 38, 5/16/23, on certification from the court of appeals; case activity (including briefs)
In a 6-1 opinion, SCOW held that the ballot question for Marsy’s law complied with Wis. Const. art. XII §1. That’s the old news. The new and BIG news is Justice Dallet’s concurrence. It is essential reading for lawyers arguing constitutional or statutory construction issues to SCOW. She, Karofsky, and A.W. Bradley say that they are not bound by “methodologies” for interpreting constitutions and statutes–specifically “originalism” or strict adherence to the “plain language”–that SCOW has used in some past cases. If Justice-elect Protasiewicz agrees, we may soon see some defense-friendly constructions of our constitution and statutes.
Defense Win! Application of “best evidence rule” results in reversal of Ch. 51 commitment
Dane County v. D.F.B., 2022AP1852, District 4, 05/11/2023 (1-judge opinion, ineligible for publication); case activity
A jury found D.F.B. dangerous under the second standard, which required evidence of a “substantial probability of physical harm to other individuals as manifested … by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm.” See Wis. Stat. § 51.20(1)(a)2.b. At trial, two witnesses testified about threats D.F.B. allegedly made by email to a University of Wisconsin-Madison employee. The circuit court overruled D.F.B.’s objection that the testimony was not the “best evidence” of the contents of the emails. The court of appeals disagrees, holding that the circuit court admitted testimony about the contents of D.F.B.’s alleged emails contrary to Wis. Stat. § 910.02 and that the error was not harmless. (Opinion, ¶¶ 1-2).
Defense Win! Invalid waiver of right to counsel results in reversal of TPR order
Winnebago County Department of Human Services v. N.J.D., 2023AP75, 05/03/2023 (District 2) (one-judge opinion, ineligible for publication); case activity
Presented with two strong bases to reverse, the court of appeals picks one and holds that because the record “fails to demonstrate that N.D. waived his right to counsel,” the order terminating his parental rights to his daughter is reversed. (Opinion, ¶1).
Defense win! Courts can’t apply §939.62(1) and §961.48 enhancers at the same time
State v. Tracy Laver Hailes, 2021AP1339-CR, 5/9/23, District 1, (recommended for publication); case activity (including briefs)
In a decision recommended for publication, the court of appeals holds that under §973.01(2)(c) a circuit court may apply either §939.62(1) (governing habitual criminality) or §961.48 (governing second or subsequent offenses) to enhance a penalty, but it may not apply both. While the circuit court erroneously applied both enhancers in this case, the court of appeals nevertheless denied Hailes’s claims for plea withdrawal, sentence modification, and resentencing.
COA: Officer had reasonable suspicion for Terry stop
State v. Jonathan M. Mark, 2022AP001739-CR, 5/10/23, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
While at a Kwik Trip investigating an unrelated incident, an officer spotted Mark whom he believed to be the subject of an outstanding warrant. When the officer conducted a Terry stop, Mark resisted and wound up pleading guilty to obstructing an officer. On appeal, he argued–unsuccessfully–that the officer lacked reasonable suspicion to stop him, and he received ineffective assistance of counsel.
COA affirms default TPR against incarcerated dad
Price County v. T.L., 2022AP1678, 4/25/2023, District 3 (1-judge opinion, ineligible for publication); case activity
The law governing default TPRs is messy. Click here. This decision makes it messier.
Defense win: Defendant alleged sufficient facts to get a hearing on his motion to reopen a default refusal judgment
State v. Peter John Long, 2022AP496, District 2, 5/3/23 (one-judge decision; ineligible for publication); case activity (including briefs)
The state concedes, and the court of appeals agrees, that Long is entitled to a hearing on his motion to reopen the default judgment entered in his refusal proceeding.
Defense win: Post-sentencing vacatur of prior OWIs may constitute a new factor justifying sentence modification
State v. James J. Socha, 2021AP1083-CR & 2021AP2116-CR, District 1, 4/25/23 (not recommended for publication); case activity (including briefs): 2021AP1083-CR; 2021AP2116-CR
The fact that some of Socha’s prior OWI offenses have been lawfully vacated since he was sentenced may constitute a new factor justifying sentence modification, so the circuit courts erred in denying Socha’s motions for sentence modification without a hearing.
COA holds error in information didn’t invalidate repeater enhancer
State v. Steven M. Nelson, 2021AP843-845, 4/4/23, District 3 (not recommended for publication); case activity (including briefs)
Nelson pleaded guilty to possessing meth as a repeater. He was eligible for the repeater enhancement because, on November 15, 2017, he’d been convicted of being a felon in possession of a firearm in Barron County Case No. 2017CF307. The information in this case noted the Barron County prior, but erroneously said it was another conviction for possessing meth. Postconviction and on appeal, Nelson submitted that the repeater enhancer is invalid because he didn’t receive notice of what the prior conviction was alleged to be.
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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.