Summary and Analysis of Recent Cases

State v. Shannon J. Perronne, 2011AP1731-CR, District 2, 5/16/12

by admin on May 16, 2012

in Claim / Issue Preclusion,Unpublished,Wisconsin Court of Appeals Opinions

court of appeals decision (1-judge, not for publication); for Perrone: Casey J. Hoff; case activity

Issue Preclusion 

When the principal State’s witness failed to appear at a suppression hearing, the trial court ordered suppression and dismissed the charge. The State then refiled the complaint and the trial court vacated the suppression order, eventually denying suppression on the ground that probable cause supported arrest. Now on appeal following conviction, the court holds that, because probable cause was not actually litigated prior to the initial suppression order, issue preclusion didn’t bar the reversal of course on suppression.

¶6        Perronne argues that the doctrine of issue preclusion barred the State from refiling charges against her after Judge Langhoff granted her motion to suppress and dismissed the case without prejudice.  The doctrine of issue preclusion prevents the relitigation of issues that have already been litigated by the same parties or their privies.  Flooring Brokers, Inc. v. Florstar Sales, Inc., 2010 WI App 40, ¶6, 324 Wis. 2d 196, 781 N.W.2d 248.  We apply a two-step test to determine whether issue preclusion bars a litigant’s claim:  (1) can issue preclusion apply as a matter of law?; (2) if yes, would the application of issue preclusion be fundamentally unfair?  Id.  In the first part, when examining whether issue preclusion applies to an issue or fact, a court must determine if the issue or fact was actually litigated and was necessary to the judgment.  Id., ¶7.  If the first part of the test is not satisfied, we do not address the fairness factors in part two.  Id., ¶8.

¶7        We hold that Perronne’s motion to suppress was not actually litigated and thus issue preclusion does not apply.  Our decision is guided by City of Sheboygan v. Nytsch, 2006 WI App 191, 296 Wis. 2d 73, 722 N.W.2d 626. …

¶8        …  Just because an issue could have been raised does not mean it was actually litigated.  Id.  At Nytsch’s judicial review hearing, no testimony was taken or evidence introduced.  Id., ¶14.  We stated that the circuit court “did not have the benefit of deciding the issue in an adversarial context.  Indeed, the court’s comments suggest that the issues underlying the status of Nytsch’s driving privileges, which would include probable cause to arrest, would be litigated at a later date ….”  Id.  As the issue of probable cause was not actually litigated, the City was not precluded from litigating that issue on the merits.  Id.

¶9        We hold that the issue of whether Kraemer had probable cause to pull over Perronne was not actually litigated at the March 23 motion hearing.  At one point during the hearing Judge Langhoff stated, “I’m not going to rule on the motion today.”  It was only after Kraemer failed to appear that Judge Langhoff granted the motion and dismissed the case without prejudice.  The motion hearing was not adversarial and no testimony was taken or any evidence introduced.  Furthermore, the circuit court even intimated that its ruling was not an end to the litigation when it stated, “If [the State] want[s] to start over, they can.”  The March 23 hearing did not decide the merits of whether there was probable cause to stop Perronne’s vehicle.  As claim preclusion does not apply as a matter of law, we need not address whether application of the doctrine would be fundamentally unfair.

That the suppression order was vacated by a different judge isn’t meaningful, ¶10: a successor judge has the same power to modify or reverse the predecessor’s orders as the predecessor him- or herself, Dietrich v. Elliot, 190 Wis. 2d 816, 822, 528 N.W.2d 17 (Ct. App. 1995) (“the power to modify a judicial ruling belongs to the court, not to any individual judge”).

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Aaron B. v. County of Milwaukee, 2011AP2287-FT, District 1/2, 5/16/12

by admin on May 16, 2012

in Mental health/protective services,Waiver / Forfeiture

court of appeals decision (1-judge, not for publication); for Aaron B.: Jeremy C. Perri, Hannah Blair Schieber, SPD, Milwaukee Appellate; case activity

Guardianship – Placement Hearing – Personal Appearance 

Failure to object to ward’s inability to appear at guardianship placement hearing waived argument that court should not have held hearing in ward’s absence.

¶7        Wisconsin Stat. § 55.10(2) provides that a ward must attend a protective placement hearing unless “after a personal interview, the guardian ad litem waives the attendance and so certifies in writing to the court the specific reasons why the individual is unable to attend.” The GAL “shall consider the ability of the individual to understand and meaningfully participate, the effect of the individual’s attendance on his or her physical or psychological health in relation to the importance of the proceeding, and the individual’s expressed desires.”  Id.  Aaron argues that this statute was violated because the circuit court conducted the hearing without a written waiver from his GAL.

¶8        Aaron’s adversary counsel did not object to the GAL’s waiver at the hearing.  Aaron admits that any objection to proceeding without his presence was waived, but still asks that we consider the issue because of its importance.  Although we have discretion to consider issues that were not raised at the circuit court, we generally do not do so, and given the facts presented, we decline to do so in this case.  See Brown v. State, 230 Wis. 2d 355, 370, 602 N.W.2d 79 (Ct. App. 1999).

¶9        We note that the GAL verbally waived Aaron’s appearance after Aaron’s attorney said Aaron could not appear.  Aaron’s health problems were well known to the parties and the circuit court.  As an officer of the court, the GAL’s statements amounted to her certification that waiver was in the best interests of Aaron given his health issues.  The GAL subsequently provided a written waiver to the court, writing that Aaron would have been unable to meaningfully participate in the hearing after his seizure and that his appearance would have been dangerous to his health.  Aaron’s attorney, having just spoken with Aaron’s mother, did not object to either the GAL’s waiver of Aaron’s appearance nor the circuit court holding the hearing without Aaron.

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State v. Casey D. Schwandt, 2011AP2301-CR, District 2, 5/16/12

by admin on May 16, 2012

in Chs. 343-346,Counsel,Defense Win,Habitual Offender,Self-Representation,Unpublished,Waiver,Wisconsin Court of Appeals Opinions

court of appeals decision (1-judge, not for publication); for Schwandt: Erik C. Johnson; case activity

OWI Enhancer – Collateral Attack – Prima Facie Showing 

Schwandt made a prima facie showing that he did not validly waive counsel in a 1997 OWI conviction used as a penalty enhancer.

General Principles.

¶5        A defendant may collaterally attack a prior conviction on the ground that his or her constitutional right to counsel was violated because he or she did not knowingly, voluntarily and intelligently waive that right.  State v. Ernst, 2005 WI 107, ¶25, 283 Wis. 2d 300, 699 N.W.2d 92.  When collaterally attacking a prior conviction, the defendant has the initial burden to make a prima facie showing that his or her constitutional right to counsel was violated.  State v. Baker, 169 Wis. 2d 49, 77, 485 N.W.2d 237 (1992); Ernst, 283 Wis. 2d 300, ¶25.  If the defendant makes a prima facie showing, the burden shifts to the State to prove by clear and convincing evidence that the defendant’s waiver was constitutionally valid.  Baker, 169 Wis. 2d at 77; Ernst, 283 Wis. 2d 300, ¶27.  Whether the defendant has made a prima facie showing is a question of law we review de novo.  Baker, 169 Wis. 2d at 78; Ernst, 283 Wis. 2d 300, ¶26.

…

¶14      As discussed above, in order to show that a waiver was valid, the record must reflect a deliberate choice to proceed without counsel, including an awareness of the difficulties of proceeding pro se, of the seriousness of the charges and of the range of possible penalties.  Peters, 244 Wis. 2d 470, ¶21 (citing Pickens, 96 Wis. 2d at 563-64).  Schwandt does not allege any deficiency in the court’s colloquy concerning the severity of the charges or the range of possible sentences.  That leaves us with the deliberate choice to proceed without counsel, including the awareness of the disadvantages of proceeding pro se.  ….

¶15      Schwandt does not claim to have been unaware of his right to an attorney before entering a plea, and neither does he deny making a deliberate choice to proceed pro se.  He does aver that he was not aware of certain specific actions that an attorney might have taken on his behalf and further that he was not aware of the possible advantages of seeking representation prior to pleading in an OWI case.  Schwandt cites several examples of ways in which an attorney might have helped him and concludes that had he been aware of these advantages of representation, he would have engaged a lawyer.  Schwandt sufficiently alleges that he was not aware of how an attorney could have helped him, and, had he been so aware, he would have engaged counsel.  Schwandt sets forth a prima facie case that his waiver of the right to counsel in the prior proceeding was not knowing, voluntary and intelligent.  We remand for the State to attempt to prove that, despite Schwandt’s averments, his waiver was knowing, voluntary and intelligent.

¶16      This case is an example of a recurring dilemma faced by the courts with collateral attacks on drunk driving convictions that are more than ten years old.  The drunk driving penalty scheme under Wis. Stat. § 346.65 looks back at the offender’s lifetime for prior violations.  At the same time, the record retention rules allow for destruction of documents as early as five years after the case is closed.  See generally, SCR ch. 72.01.  The interplay produces collateral attacks for which the court has no transcript from the prior proceeding.  See State v. Drexler, 2003 WI App 169, ¶11 n.6, 266 Wis. 2d 438, 669 N.W.2d 182.

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Michael B. v. Marcy M., 2011AP2846, District 2, 5/16/12

May 16, 2012

court of appeals decision (1-judge, not for publication); for Marcy M.: Jane S. Earle; case activity TPR – Summary Judgment on Grounds – Ineffective Assistance of Counsel  By responding (inadequately) to a TPR motion for summary judgment on grounds with a letter rather than evidence such as an affidavit, counsel provided ineffective assistance. ¶10      We disagree that [...]

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State v. Ralph S. Stewart, 2011AP1424-CR, District 1, 5/15/12

May 15, 2012

court of appeals decision (not recommended for publication); for Stewart: Byron C. Lichstein; case activity Ineffective Assistance – Failure to Impeach  Counsel’s failure to impeach police officers, with their own reported statements, was deficient: ¶17      While matters of trial strategy are generally left to counsel’s professional judgment, counsel may be found ineffective if the strategy was [...]

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State v. Joel R. Medrow, 2011AP2314, District 1, 5/15/12

May 15, 2012

court of appeals decision (1-judge, not for publication); for Medrow: Chad A. Kanning; case activity Reasonable Suspicion – Anonymous Call  An anonymous call to the police reported that the caller had followed a possibly impaired driver who had turned parked in the front parking lot of the Cudahy Police Department; the report included the vehicle’s license [...]

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Oneida County Department of Social Services v. Scott H, 2011AP2599, District 3, 5/15/12

May 15, 2012

court of appeals decision (1-judge, not for publication); for Scott H.: Brian C. Findley; case activity; companion case: Oneida County Department of Social Services v. Amanda H., 2011AP2599  TPR – IAC – Lack of Prejudice  Notwithstanding trial counsel’s concession of no strategic reason for allowing the jury to view documents reciting Scott’s “history of violent behavior,” [...]

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Oneida County Department of Social Services v. Amanda H, 2011AP2600, District 3, 5/15/12

May 15, 2012

court of appeals decision (1-judge, not for publication); for Amanda H.: Shelley Fite, SPD, Madison Appellate; case activity; companion case: Oneida County Department of Social Services v. Scott H., 2011AP2599 TPR – Severance  On joint trial for termination of parental rights, Scott’s disruptive conduct didn’t necessitate grant of severance motion by Amanda. United States v. Mannie, 509 [...]

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State v. Andre L. Miller, 2011AP901-CR, District 2, 5/9/12

May 9, 2012

court of appeals decision (recommended for publication); for Miller: Jeffrey J. Guerard; case activity Haseltine “Vouching” Rule  The anti-vouching rule of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984) (one witness may not comment on the credibility of another witness) isn’t applicable to a pre-trial interrogation during which the detective describes the defendant [...]

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State v. Darryl P. Benson, 2010AP2455-CR, District 1, 5/8/12

May 8, 2012

court of appeals decision (not recommended for publication); for Benson: Mary Scholle, SPD, Milwaukee Appellate; case activity Charge Duplicity – Juror Unanimity  Sexual assault charges were not duplicitous, and in any event, potential unanimity problem was resolved by the instructions: ¶17      To begin, we conclude that the amended information properly notified Benson of the charges against [...]

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