On Point

Sheboygan County v. M.W., 2022 WI 40, reversing an unpublished court of appeals opinion; case activity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

State v. Justin M. Church, 2021AP751-CR, District 3, 6/1/22 (not recommended for publication); case activity (including briefs)

At a pretrial hearing the circuit court made what the court of appeals characterized as an “ill-advised and troubling” attempt at humor (¶26), but it didn’t demonstrate that the circuit court prejudged the sentence it was going to impose or otherwise demonstrate a serious risk of actual bias.

Jones v. Hendrix, USSC No. 21-857; cert. granted 5/16/22; Scotusblog page (containing links to briefs and commentary)

Question presented:

The question presented is whether federal inmates who did not—because established circuit precedent stood firmly against them—challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under § 2241 after this Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction

Brown v. Davenport, USSC No. 20-826, 4/21/2022, reversing Davenport v. MacLaren, 964 F.3d 448 (6th Cir. 2020); Scotusblog page (including links to briefs and commentary)

What’s the standard of review for a federal habeas court considering whether a state court has properly found a constitutional error harmless? Well, actually, now a habeas petitioner must satisfy two different standards. He or she must show (1) that the state court unreasonably applied Chapman and (2) that the error was not harmless under the Brecht standard, a more prosecution-friendly test than Chapman‘s “beyond a reasonable doubt” harmlessness burden.

State v. M.S.H., 2022AP369, 6/1/2022, District 1 (one-judge decision; ineligible for publication); case activity

The circuit court found M.S.H. to be an unfit parent on summary judgment. Turning to the dispositional phase, the court granted the state’s request to conceal from M.S.H. the identity of the person who the state considered likely to adopt her child.

State v. S.L.W., 2021AP1736 & 1737, 6/1/22, District 1 (one-judge decision; ineligible for publication); case activity

S.LW. appeals the termination of parental rights to her children. She argues her attorney failed to inform the jury of court-ordered services the Milwaukee County child-services agency didn’t provide. The court of appeals holds that if counsel performed deficiently in this regard, it didn’t affect the jury trial because the county did make a reasonable effort to provide the services, and because there was an independent ground for termination. (UPDATE: the original post said S.L.W. didn’t challenge this second ground on appeal; the comment below informs us that she did.)