On Point

Shinn v. Ramirez, USSC No. 20-1009, 5/23/22, reversing Ramirez v. Ryan, 937 F.3d 1230 (9th Cir. 2019); Scotusblog page (including links to briefs and commentary)

You can read at Scotusblog quite a bit of commentary on this most recent entry in the present Court’s war on habeas. At oral argument, the lawyer for the state told the court that “innocence isn’t enough” to merit relief for one of the death-row inmates in this case to gain relief. And the Court now agrees. The reason: the likely innocent inmate’s state-provided postconviction counsel didn’t make a good enough record that his trial counsel was ineffective.

State v. Valiant M. Green, 2022 WI 41, affirming a court of appeals summary disposition, 2019AP2150-CR, case activity (including briefs)

Does an affidavit supporting a warrant for a blood draw state probable cause where it alleges that the defendant “drove or operated a motor vehicle at driveway of [residential address]” and that the defendant “admitted to drinking alcohol at the house?” Writing for the majority, Justice Hagedorn answers “yes.”  Justice A. W. Bradley, the sole dissenter, says “no.”

State v. Kimberly L. Howell, 2021AP1865-CR, 6/8/22, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

Howell served as guardian for five children, four of whom were her grandkids. The fifth, 11 year old S.G., has special needs.  Howell pled no contest to child neglect and domestic abuse due to her mistreatment of S.G. The circuit court gave her two years of probation during which she could not serve as a guardian for any child, including her grandson, J.R., who has autism. On appeal, Howell argued that this condition of probation was (1) overly broad and unconstitutional and (2) unreasonable and inappropriate.

County v. Buffalo v. Kevin J. Rich, 2020AP1526, 6/7/22, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)

The court of appeals rejected all three of Rich’s challenges to his OWI 1st conviction. It held that the deputy did have reasonable suspicion to stop Rich’s jeep and to expand the stop to require field sobriety tests. It also held that even though Rich gave six breath samples, he consented to and completed just one breath test.

State v. Q.S., 2022AP420-421, 6/14/22, District 1, (1-judge opinion, ineligible for publication); case activity

This appeal concerns whether the circuit court erroneously exercised its discretion when it it held that the termination of Q.S.’s parental rights to his three children was in their best interests.  The court of appeals held that the circuit court applied all of §48.426(3)‘s “best interests of the child” factors. Q.S. simply didn’t like how heavily the circuit court weighed unfavorable evidence. 

Sheboygan County v. M.W., 2022 WI 40, reversing an unpublished court of appeals opinion; case activity

The crisp majority opinion of this 50-page split decision confirms a narrow but important point of law for ch. 51 cases. When an appellate court reverses a commitment order that has expired, the circuit court lacks competency to conduct remand proceedings in the case. The majority opinion does not address whether, in all cases, an appellate court must reverse a “D.J.W. error” outright or whether it may instead conduct a harmless error analysis. The dissent does not fully grasp this point and thus presents a long, confusing attack on an imaginary majority opinion.

State v. Travis R. Braly, 2021AP2086-CR, District 4, 6/9/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Braly challenges the stop of the car he was driving, arguing it was clearly erroneous for the circuit court to find that the officer who stopped him had reasonable suspicion to believe he had not stopped prior to entering an intersection as required by § 346.46(1) and (2)(c). The circuit court rejects the claim based on the officer’s testimony, the squad camera footage, and the circuit court’s findings.

State v. Jimmie L. Blount, 2021AP1943-CR, District 2, 6/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)

At one sentencing hearing on two different cases, the circuit court imposed on one case a 4-year bifurcated prison sentence—2 years’ confinement and 2 years’ extended supervision—and on the other ordered 3 years of probation. The court said the probation would be concurrent to the ES on the first case, which would’ve added another year onto the “global” disposition of 5 years. Both lawyers pointed out the probation has to be either concurrent with or consecutive to the total bifurcated sentence, so the judge ordered the probation to be consecutive, thus increasing the “global” disposition to 7 years. The judge’s need to correct its initial error didn’t amount to a new factor justifying sentence modification.

State v. Rebecca Sue Ferraro, 2021AP1654-CR, District 2, 6/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Ferraro pled to and was sentenced for OWI, third offense, before the blood alcohol test result of her blood draw was available. At sentencing the preliminary breath test result was bandied about as one of the aggravating factors. A few days after sentencing, the BAC result arrived. Turns out it was lower than the PBT. That is not a new sentencing factor because it’s not highly relevant to the sentence imposed; and even if it was, the circuit court properly concluded it didn’t merit sentence modification.

SCOW’s 2021-2022 term isn’t over yet, so this data point could change quickly. Still, SCOWstats presents an interesting snapshot of 4-3 decisions today.